THE COURT

(Sheriff MacLeod, Mr D J Houston)

SOUTH UIST ESTATES LTD v MURDO MACKENZIE and ORS

(Application RN SLC 113/09 – Order of 3 February, 2011)

CROFTING – JURISDICTION OF LAND COURT TO GO BEHIND ADMINISTRATIVE ORDERS OF CROFTERS COMMISSION – JURISDICTION OF COURT TO DECIDE WHETHER LAND SUBJECT TO AN APPORTIONMENT ORDER GRANTED BY COMMISSION WAS COMMON GRAZINGS AT DATE OF THAT ORDER

In July 2008 the respondent obtained from the Crofters Commission an apportionment order under sec 52(4) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) purporting to apportion to him an area of land said to be part of Snishival Common Grazings, South Uist. He subsequently took occupancy of this land, fenced it and erected poly-tunnels on it. In the period between the respondent’s application for an apportionment and its eventual grant the ownership of South Uist Estates Limited, the company owning the relevant land, changed hands, the previous private shareholders being replaced by a community company formed for the purpose of taking community ownership of the estate. The community owned company applied to the Court for an order as to the boundary between the Snishival Common Grazings and the respondent’s croft, contending that the land referred to in the respondent’s apportionment order had never been subject to crofting tenure of any kind and in particular had not formed part of the Snishival Common Grazings when the apportionment order was made. The respondent challenged the jurisdiction of the Court to deal with the application, arguing that the apportionment order was a decision of the Crofters Commission in the discharge of its functions under the 1993 Act and that, in terms of sec 53(1)(e) of that Act, such decisions were not amenable to review by the Land Court unless a matter of law was involved.

HELD (1) that the essential question in the case was whether the land in question had been part of the common grazings, or subject to crofting tenure at all, immediately prior to the grant of the Commission’s order; (2) that that was a question which the Court undoubtedly had jurisdiction to answer in terms of paras (a) and (d) of sec 53(1) of the 1993 Act; (3) that a jurisdiction explicitly conferred on the Court by statute could not be displaced as an incidental effect of an administrative order made by the Commission where that order was based on an issue (here the status of the land in question) which the Commission itself had no jurisdiction to decide except for administrative purposes; (4) that, in order to better focus the real issue between the parties, the Court would ex proprio motu exercise the powers available to it in terms of Rule 38 of the Rules of the Scottish Land Court to amend the crave of the application so as to identify that issue (i.e. whether the land in question had been part of the Snishival Common Grazings at the date of the apportionment order); and application continued to proof on that issue.

So far as relevant to the foregoing, the Note appended to the Court’s Order is as follows:-

Note

[1] This is an application for an order “(i) determining the boundaries of Snishival Common Grazing in so far as it bounds Snishival Mill / Millhouse and/or (ii) determining the boundaries of croft No. 186 Snishival, crofted by the Respondent Murdo MacKenzie and in particular whether the land within the purported apportionments to him by the Crofters Commission referred to in Statement 2 forms part of his croft”. The applicants are South Uist Estates Limited, as landlords of the crofting estate of which the Snishival Common Grazings and croft No. 186 Snishival form part. The application was intimated to all of the shareholders in said Common Grazing. Although letters were sent in to the Court by two others, only two of the respondents have formally lodged Answers to the application, one being the said Mr Murdo MacKenzie and the other being Mr Angus MacMillan, tenant of croft 185 Snishival. Mr MacMillan is also Chairman of South Uist Estates but appears in this case as an individual crofter respondent. We shall refer to these parties respectively as the first and second respondents.

[2] The answers lodged on behalf of Mr MacKenzie contain two preliminary pleas, as follows:-

“1. All parties not called.

2. The Court having no jurisdiction under section 53 of the Crofters (Scotland) Act 1993 to determine the Application, the Application should be dismissed.”

[3] Although the applicants and Mr MacMillan had offered a proof before answer, these pleas were insisted upon by Mr MacKenzie’s representatives and we heard debate upon them at Edinburgh on 13 December 2010, when the applicants were represented by Sir Crispin Agnew of Lochnaw Q.C., Mr MacKenzie by Ms Isla Davie, advocate, and Mr MacMillan by Mr Donald Cameron, advocate.

Authorities

Legislation

Crofters (Scotland) Act 1993, sec 53(1)

Cases

Abercromby & Ors v Badenoch & Ors 1909 2 S.L.T. 114
Charleston Properties Ltd v Crofters Commission 1968 SLCR App 118
Crofters Commission v Gunn 1991 S.L.T. (Land Ct.) 53
Crofters Commission v Westminster (Liverpool) Trs Co 2000 SLCR 115
Fraser v Spencer and Ors 2001 SLCR 116
Guthrie v Bowman (No. 1) 1997 SLCR 71
Imrie v Kerrigan 2007 SLCR 220
Lamont v Kennedy & Ors Unreported decision of Full Land Court dated 8 September 2010, ref. SLC/160/09
Macdonald v Hilleary 1993 S.L.T. (Land Ct.) 26
MacIntyre v Dagg Unreported decision of Divisional Land Court dated 12 June 1998, ref. SLC/65/96
Mensah v Secy of State for the Home Department 1992 S.L.T. 177
Paterson v Scottish Solicitors’ Discipline Tribunal 1984 S.L.T. 3
Sitwell v MacLeod (1889) 1 F. 950
Stuart & Stuart v MacLeod (1891) 1 R. 223

Texts

Hon. Lord Clyde, Judicial Review, (2000), para 12.15
Sir Crispin Agnew of Lochnaw Bt. Q.C., Crofting Law

Factual background

[4] All that it is necessary to say by way of explanation of the factual background to this application is that it concerns an apportionment order granted by the Crofters Commission in favour of the first respondent in respect of an area of land surrounding the Old Mill at Snishival, South Uist on 15 July 2008. The applicants and the second respondent contend that the area of ground comprising that apportionment was not and is not common grazings and therefore could not competently have been apportioned. Their position is that this land has never been subject to crofting tenure. In 1990 the second respondent was granted an apportionment order in respect of 5.6 hectares of land surrounding what is now the first respondent’s apportionment. It is unclear to us whether the conditions pertaining to that order have ever been complied with and what its present status is but the second respondent states that he refrained from including the land now apportioned to the first respondent in his own application only because of his understanding that it was not part of the common grazings.

Paras [5] to [8] omitted

Submissions

(i) for the first respondent

[8] Ms Davie moved us to sustain said pleas-in-law and dismiss the application. In a three part submission, she dealt first with the relevant law.

[9] The application was made under sec 53(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act” or “the Act”). Ms Davie referred to its terms. She referred to the proviso to the subsection which excludes from the jurisdiction of the Land Court “(i) any question of a kind reserved by this Act to a court other than the Land Court; (ii) (other than on a reference made to it by the Commission) any question arising by virtue of an application to the Commission under this Act; or (iii) any other question (other than a question of law), if it is a question decided by the Scottish Ministers or the Commission in the discharge of their respective functions under this Act.” She relied particularly on part (iii) of that proviso. An apportionment order under sec 52(4) was a question decided by the Commission in the discharge of its functions under the Act and the Land Court’s jurisdiction to entertain any question in relation to it was therefore excluded.

[10] Sec 53(1) should be interpreted in such a way that where a decision of the Crofters Commission was being attacked on a purely factual basis that decision was not capable of being reviewed by the Land Court. Authority for that proposition was to be found in the case of Crofters Commission v Gunn at page 56E-K.

[11] In MacDonald v Hilleary the Court had said (at page 26J) that where grounds existed for challenging the validity of an order of the Crofters Commission they could only be pursued by an action of reduction.

[12] Ms Davie submitted that, looking at sec 53(1) and these cases together, the position was that whereas the Land Court was specifically given jurisdiction to deal with the boundaries of a croft and of common grazings, if, and to the extent that, a question arose which had been decided by the Crofters Commission in the discharge of its functions under the 1993 Act the Land Court could deal only with a question of law relating to that.

Paras [13] to [19] omitted – The second part of Ms Davie’s submission sought to show that, notwithstanding the wording of the crave, the application truly involved a review by the Court of the Commission’s apportionment order.

[20] The application was, effectively, an attempt to obtain a review of a question of fact already decided by the Crofters Commission in the discharge of its statutory functions. Reference was made to Charleston v Crofters Commission in which an application to the Land Court to quash an order made by the Commission consenting to the assignation of the tenancy of a croft had been regarded by the Court as tantamount to an action of reduction. In that case the application to the Court had involved no question of law and the application had been refused. Although the applicants in the present case did not ask the Court to quash a decision of the Commission, their application, properly understood, was also tantamount to an action of reduction and, like Charleston, it contained no question of law.

[21] In the third part of her submission Ms Davie sought to analyse the legal principles involved. It was significant, she submitted, that the 1993 Act provided ample opportunities for potential disputes in this sort of area to be resolved. Thus there was provision for objection to apportionment applications, the Crofters Commission could refer a matter to the Land Court prior to making its decision, there was provision for appeal to the Land Court by way of Stated Case and the possibility of raising an action for reduction in the Court of Session was also available in a suitable case. These various avenues exhausted the forms of recourse available to an aggrieved party: there was no provision for a review of a Commission decision by this court on the basis of factual matters alone.

[22] Imrie v Kerrigan (at paragraph [45] of the Court’s Note) showed that the Land Court was alive to the problem of how to deal with clear errors in decrofting directions. Whatever the answer to that problem may be, the present case did not involve a clear error on the part of the Commission. Instead the application proceeded in a guise which hid the true issue at stake.

[23] Crofters Commission v Westminster (Liverpool) Trust Co provided useful guidance. That case had been a reference by the Commission itself asking the Court to determine the status of an area of ground which the Commission had apportioned and to declare whether the apportionment order was valid, yet the Court had held that it did not have jurisdiction to review the merits of an apportionment order made by the Commission. At page 117 the Court made clear that, while it might be possible for it, under sec 53(1), to determine a question of law implicit in a decision of the Commission, it had no jurisdiction to review decisions of the Commission where no question of law arose. More generally, the comments of the Court at page 117 to the top of page 119 were commended to us for our guidance. The present case was almost on all fours with Crofters Commission v Westminster and we should come to the same conclusion.

Para [24] omitted

(ii) For the applicants

[25] Sir Crispin moved us to repel the first and second pleas-in-law for Mr MacKenzie and to allow a proof before answer.

[26] This was not an action of reduction but it may be a preliminary to such an action. The Land Court, having jurisdiction to determine boundaries, its decision on that question would be conclusive for the Court of Session in dealing with an action for reduction.

Paras [27] to [32] omitted.

[33] Paragraph (i) of the proviso to subsection 53(1) clearly excluded questions reserved to any other court. Actions of reduction would be covered by that provision. Paragraph (iii) excluded questions, other than questions of law, decided by Scottish Ministers or the Crofters Commission in the discharge of any of their respective functions under the Act. When one was talking about apportionment, the function the Commission was discharging was the apportioning of land which purported to be common grazing: the Commission was not determining whether the land in question was common grazing, that not being one of their functions under the Act. Although the Commission may be entitled to consider whether land sought to be apportioned was common grazing as part of an explicatory jurisdiction, the determination of whether land was common grazing was reserved to the Land Court in terms of sec 53(1)(d).

[34] So the position was that this Court had jurisdiction to deal with this application under paragraphs (a), (c) and (d) of subsec 53(1).

[35] One had to look at the Commission’s powers. In terms of sec 52(4) the only people the Commission were obliged to consult were the Grazings Committee, not the landowner and not the individual crofters having shares in the grazings. So an interested party may find out about the apportionment only after the order had been made. That demonstrated that it was not the Commission’s function to determine the boundaries of a common grazing because, were that their function, they would have to consult with the landowner at least. The Commission had no power to apportion land which was not common grazing. Their action in purporting to apportion land to a particular crofter could not have the effect of changing the crofting status of that land. Nor could the Commission, by granting an apportionment, change the status of land such that it became subject to the Crofting Acts. The Crofters Commission has no power to change or alter boundaries of croft land so as to exclude it from the jurisdiction of the Court.

[36] Sir Crispin referred us to some cases. These appeared not to have been referred to in the cases cited by Ms Davie. The first was Fraser v Spencer. It was an example of the Commission explicating its jurisdiction for the purpose of making Grazing Regulations but this Court had held that the Commission having done so did not displace the jurisdiction of the Land Court to determine the boundaries of a common grazing in terms of sec 53(1). The Commission having made regulations dealing with a common grazing of a certain extent did not preclude either disputes arising in future as to what truly was the extent of the common grazing nor the jurisdiction of this Court to resolve these disputes by determining that question (see the Divisional Court’s Note at page 117). The same was true of apportionment orders.

[37] Sir Crispin then referred to two cases dealing with the pre-1912 Crofters Commission. The first was Stuart & Stuart v MacLeod. Sir Crispin referred in particular to a passage from the opinion of Lord McLaren at page 231 which, he submitted, put the matter concisely:-

“I agree … that while the Commissioners must necessarily consider the question whether an applicant is a crofter for the purposes of the special jurisdiction or authority conferred on them by the constituting Act, yet if a dispute arises between landlord and tenant on this point, the Commissioners have no jurisdiction as between landlord and tenant to construe the statute, and to determine whether the tenant is or is not a crofter in the sense of the Act. Their duty is, having found a crofter, to consider the question of fair rent as between him and his landlord, and unless the proprietor and the tenant are agreed that the tenant is a crofter in the sense of the statute and is entitled to its benefits, it is only through the ordinary Courts of the country that the dispute can be finally determined.”

In the present case the boundaries were not agreed between landlord and tenant so determination of them was a matter for the special jurisdiction of the Land Court.

[38] Sitwell v MacLeod was, said Sir Crispin, a much clearer case. In that case the Court of Session had held that the terms of secs 21 and 25 of the Crofters Holdings Act 1886, which respectively empowered the Commissioners to determine the question of whether a person was a crofter summarily and provided that “the decision of the Crofters Commission in regard to any of the matters committed to their determination by this Act shall be final”, did not oust the jurisdiction of the ordinary courts. Reference was made to lengthy passages from the opinion of the Lord President Robertson at pages 955 to 957 and to the opinions of Lord McLaren and Lord Kinnear at pages 959 to 962. These passages distinguish between substantive matters committed to the determination of the Commissioners, such as the fixing of fair rents and determination of boundaries, and incidental matters which they may have had to decide in the process of dealing with these substantive matters, such as whether a person was a crofter. Applying what was said and decided in Sitwell to the present case, the fact that the Commission had considered the land in question to be part of the common grazing did not mean that a court could not determine the question whether the land was in fact part of the common grazing and, the specific power to decide that question having been conferred on the Land Court by sec 53(1) of the 1993 Act, it was competent for the Court to deal with it. Where there was an apportionment by the Commission of land which was genuinely part of the common grazing, that was something with which the ordinary courts would not interfere. But where the Commission had purported to apportion land which was not common grazing the jurisdiction of the ordinary courts to determine whether the land was part of the common grazing was not displaced. So this Court still had power to determine the boundaries of the common grazing. The fact that there was an apportionment order did not affect that jurisdiction. Nor did it affect the status of the land in question so as to displace the jurisdiction of the Land Court. The Court could always deal with the underlying question of whether or not the land in question was common grazing.

[39] Sir Crispin then addressed the question whether the Court was debarred from dealing with that question now because of the fact that there had been no appeal against the granting of the apportionment order. In his submission it was not. He relied on paragraph 12.15 of Lord Clyde’s book on Judicial Review. It will suffice to quote the first two sentences of that paragraph, which is headed “Fundamental invalidity”:-

“Where a matter of fundamental invalidity is raised, application to the court may competently be made either before or after a statutory appeal and irrespective of the points taken in any such appeal. The most obvious case is where it can be shown that the authority has acted beyond its powers, with the result that its whole actings are null and void.”

Where one had an apportionment order in respect of land which was not common grazing that effectively represented the Commission acting outwith its powers and therefore the jurisdiction of this court was not excluded by the fact that there had been no appeal against the granting of the order. Where there was fundamental nullity one did not have to go down the appeal route. Reference was also made to the cases of Paterson v Scottish Solicitors’ Discipline Tribunal (the second full paragraph of the Lord Ordinary’s opinion at page 6), Abercromby & Ors v Badenoch & Ors (the third full paragraph of the Lord Ordinary’s opinion at page 116), and Mensah v Secretary of State for the Home Department.

[40] Sir Crispin then dealt with some of the cases cited by Ms Davie. Some of these, he submitted, were dealing with valid apportionment orders. Although it had declined to review the validity of the apportionment order in the case, it was significant that in the Westminster case the Court had been prepared to contemplate a situation in which it would be entitled to determine whether a particular area was in fact common grazing, notwithstanding that an apportionment order had already been granted in respect of it. Moreover, the Court there had not been referred to the cases of Stuart & Stuart and Sitwell, which would have been binding on it.

[41] Imrie was distinguishable on the basis that it involved a decrofting direction. A decrofting direction, on the face of it, removed the land in question from this Court’s jurisdiction, whereas an apportionment order did not.

[42] So far as the “All parties not called” plea was concerned, the Crofters Commission had no locus in this matter if it were dealt with as a boundary dispute. Sec 53(2) required the Land Court to intimate its determination on any question coming before it under subsection (1) to the Commission. This tended to confirm the view that the Commission was not intended to be party to applications to the Court under sec 53(1).

Paras [43] to [45] omitted

(iii) For the second respondent

[46] The second respondent’s position was identical to that of the applicants, at least for the purposes of this debate, and Mr Cameron adopted Sir Crispin’s submissions in their entirety. He formally moved us to repel Mr MacKenzie’s first and second pleas-in-law.

Paras [47] to [48] omitted

(iv) Reply by Ms Davie

[49] So far as the authorities relied upon by Sir Crispin were concerned, in Fraser the Court had determined that the Grazings Regulations had been put together by the Commission for an administrative purpose and that what the Commission had done had not involved determining the substantive question. So it was not being asked to review a substantive decision of the Commission. So far as Sitwell and Stuart & Stuart were concerned, we should be cautious in relation to cases of their antiquity. The role of the Commission had changed, evolved. But more importantly, Ms Davie submitted, no issue was being taken by her as to the principle that decisions of the Commission could be reviewed. But there was a proper form for such review and this was not it. The proper form was an action for reduction, as in Sitwell.

[50] Sir Crispin’s submission that it was only when the Commission had been acting within the provisions of the Act that review of its decisions was excluded by the proviso to subsection 53(1), although superficially attractive, failed to take account of the wording of the proviso. The wording used, particularly in paragraph (iii), was wide. It simply referred to a question having been decided. It did not contain any qualification along the lines of Sir Crispin’s argument. Accordingly any decision taken by the Commission in discharge of any of its functions under the Act was final unless timeously appealed against or made the subject of an action of reduction. Any other review was excluded. It was precisely in the interests of finality and avoidance of duplication that paragraph (iii) was worded as it was. It covered not only the ultimate decision of the Crofters Commission in the discharge of its functions under the Act but all questions it had to answer in order to arrive at that ultimate decision.

[51] Sir Crispin had been very frank in stating that the ultimate intention was to challenge the Commission’s order but this approach was a very unusual one, involving, as it did, two steps where one (an action of reduction in the Court of Session) would suffice.

Paras [52] to [55] omitted

Decision

[56] The starting point for resolving the jurisdictional problem posed at debate must be the nature of the application ex facie. It is, on its face, an application seeking the determining of boundaries of common grazings and/or a croft. These are manifestly matters within our jurisdiction in terms of sec 53(1)(c). Also, since determining a boundary between a croft and common grazings involves determining which is which, the Court can rely on paragraph (d) as empowering it to decide whether land is part of a common grazing. Clearly also we have jurisdiction under paragraph (a) to determine whether a holding is a croft – and therefore whether it is subject to crofting legislation. It can hardly be doubted that these jurisdictions apply also to parts of crofts and parts of common grazings. Accordingly, on the face of the application as pled we appear to have jurisdiction.

[57] The basis upon which jurisdiction is said to be excluded is paragraph (iii) to the proviso to sec 53(1) which provides that this Court has no power to determine “any … question (other than a question of law), if it is a question decided by the Scottish Ministers or the Commission in the discharge of any of their respective functions under [the 1993 Act]”.

[58] What Ms Davie’s submission of no jurisdiction comes to is that the existence of the apportionment order prevents us from going beyond its terms and examining whether the land in respect of which it was granted was in fact part of the common grazing. She says that the Commission must be taken to have determined, as part of the discharge of its functions under sec 52(4) of the Act, that the land was common grazings and that their decision on that is now beyond challenge because of the terms of paragraph (iii) of the proviso to sec 53(1).

[59] It is clearly the case that in making the apportionment order the Crofters Commission were discharging a function under the 1993 Act. But that function was not, primarily at least, to decide whether the land to be apportioned was part of the Snishival Common Grazings. Such determination is not a function committed to the Commission by the 1993 Act but to this Court. Furthermore, as a matter of fact, as we understand it, the Commission carried out no enquiry into that question and cannot therefore be said to have determined it in any meaningful way. Instead they seem to have proceeded on the assumption that the land was common grazings. As we understand it they were only required to consult the Grazings Committee of the time and they may well have been entitled to assume, in the absence of objection from it, that the relevant land was part of the grazings. The effect of these two points is, in our view, that it cannot be said that the Commission has made a decision as to the status of this land in the discharge of any of its functions under this Act. The effect of that in turn is that the paragraph (iii) does not apply at all.

[60] Leaving aside the matter of whether the Commission did in any meaningful sense determine the status of the land in this case, we think our conclusion above is supported by what was said and done in Sitwell v MacLeod. That was an action of reduction in whichthe Court of Session was asked to deal with the question of whether the defender was a crofter notwithstanding that the Crofters Commission of the time had already decided that he was and notwithstanding the provision of sec 25 of the 1886 Act that “the decision of the Crofters Commission in regard to any of the matters committed to their determination by this Act shall be final”.

[61] Ms Davie makes the point that Sitwell was an action for reduction and she takes no issue with the competency of such an action in the present situation, but relies on the fact that such actions are reserved to the Court of Session. Nevertheless we think that valuable guidance can be derived from their Lordships opinions in that case.

[62] At page 955 the Lord President asked himself the question, in relation to sec 25, “What, in the sense of this section, are the matters committed to the determination of the Commission?” In answering that question His Lordship went on to draw a distinction between the right to fixity of tenure, in which the Commission was given no role, and the rights to the fixing of a fair rent and to apply for enlargement of holdings, in which it was. He described the duties of the Commission in relation to these matters as being of an administrative character (page 956, second full paragraph). His Lordship then went on to discuss the make up of the Commission in terms of members, noting that it was in accordance with what one would expect if the Commission’s work was of an administrative nature and only incidentally touched on legal questions. Against that background the only things which could be said to have been committed to the determination of the Commission (of the time) were the fixing of rents and boundaries and it was only in respect of these things that sec 25 was to be taken to make their decisions final (page 956). The Commission would certainly encounter legal questions from time to time and have to answer them, but these were only incidental to the determination of the matters committed to them and in relation to these incidental matters the finality clause did not apply (page 957). His Lordship then tested the matter by asking whether one could go to the Commission solely for a determination of the question “am I a crofter?”. The answer to that was clearly no, because that was not a question committed to the Commission by the 1886 Act, it was one for the ordinary courts. It would be perverse, therefore, to hold that a decision of the Commission on a matter which it would otherwise have no power to decide became final merely because it arose for decision as an incident to a matter committed to it by the Act.

[63] The dicta of Lord Adam and Lord McLaren in Stuart & Stuart v MacLeod referred to by Sir Crispinare to similar effect although the decision itself is not in point.

[64] We then come to the much more recent cases decided in this court. In Charleston Properties Ltd v Crofters Commission the landlords of a croft applied to the Court for an order quashing the Crofters Commission’s decision under sec 8 of the 1955 Act consenting to the assignation of the croft tenancy. The Court held that its jurisdiction under sec 4 of the Crofters (Scotland) Act 1961 in relation to decisions taken by the Commission in discharge of their functions under that Act and the 1955 Act was confined to questions of law and that since the application contained no question of law it fell to be dismissed. Ms Davie recognised that in the present application we were not being asked expressly to quash the decision of the Commission. Nevertheless, just as the application in Charlestonhad been described by the Court (at page 120) as being “tantamount to an action of reduction”, so too was this one in her view.

[65] We do not think that is so. We say that because nothing we do in this case can be tantamount to reducing the Commission’s decision. If we make a finding that the land comprised in the apportionment was not, at the time the apportionment order was made, common grazing that will certainly arm the applicants for any subsequent action of reduction in the Court of Session. But it will not be determinative of that action since other defences may be available to Mr MacKenzie which, if sustained, would prevent reduction. It was plainly the case in Charlestonthat the Land Court did not have jurisdiction. It had no jurisdiction of its own in relation to consenting to assignations of croft tenancies. That was a function of the Commission and the Land Court could not interfere unless questions of law arose in relation to the Commission’s discharge of that function. Here the position is different. This court has an express jurisdiction in terms of sec 53(1)(c) and (d) to determine the boundaries of a common grazing and whether any land is part of a common grazing.

[66] Crofters Commission v Gunn is of little assistance. There the Court held, inter alia, that it had no jurisdiction to review apportionment orders on the grounds of alleged failure by the Commission to have proper regard for the agricultural aspects of the proposed apportionments (page 56J-K). There was no question of a jurisdiction, which the Court would otherwise have, being ousted by a decision already made by the Commission: the Court had no ostensible jurisdiction whatsoever to deal with that aspect of the case.

[67] Macdonald v Hilleary was an application by the holder of an apportionment for authority to acquire the land as a “deemed croft” in terms of sec 3(5) and (6) of the 1955 Act. Counsel for the landowner attempted to argue that the apportionment order was invalid. The point was not persisted in but the Court commented (at page 26J) that “[h]ad there indeed been grounds for so doing they could only have been pursued by way of an action for reduction in another forum with the commission called as defenders”. There can be no dispute that an attempt to have the apportionment order declared invalid would have had to be pursued by way of action of reduction in the Court of Session. That is not being disputed in the present case. We reject Ms Davie’s submission that this application is tantamount to an action of reduction for the reasons already given at paragraph [65] above. Nothing said by the Court – and very little was said – in Macdonald v Hilleary seems to us to be authority for the proposition that this court does not now have jurisdiction to make a finding in relation to the status of land comprised in an apportionment order.

[68] In Fraser v Spencer and Ors the Court was asked to determine the boundaries of a common grazing which had been made the subject of regulations by the Commission under sec 49(8) of the 1955 Act. The question was whether the Commission’s determination as to the extent of the land to which the regulations were to apply was conclusive and excluded the Court’s jurisdiction. In answering that question the Divisional Court said this (at page 117):-

“We reject the contention that we do not have jurisdiction in this instance. There is no authority under which the Commission can determine the boundaries of a common grazings but this jurisdiction is expressly conferred on the Land Court by the terms of section 53. … … Doubtless the Commission must make their best endeavours to ascertain the boundaries for the purpose of preparing appropriate Regulations, but this neither prevents future disputes from arising nor does it prevent a subsequent application from being competently placed before the Land Court to determine the boundaries of the common grazings.”

We agree.

[69] Crofters Commission v Westminster (Liverpool) Trust Co & Ors was a reference by the Commission to the Court. It asked the Court to declare whether an apportionment order was valid and effective or null and void. The Court held that it did not have jurisdiction to review the general merits of an apportionment order.

[70] Again the first point to be made in relation to the Westminster case is that the present application differs in that we are not being asked expressly to rule on the validity of the apportionment order.

[71] Secondly, all the Court in Westminsterdecided was that it did not have jurisdiction to review the general merits of an apportionment order made by the Commission. It expressly allowed, in the following passage from page 118 of the report, upon which Sir Crispin relied, for the possibility that it could deal with a matter although the result of doing so may be inconsistent with an order of the Commission. What the Court said was this:-

“We recognise that there may be cases which raise difficult questions as to whether a matter can properly be dealt with by us when the result may be inconsistent with an order of the Commission. If the matter which we have to determine in any particular case is one which may fairly be dealt with without reliance on such an order we may be able to deal with it even if the answer is inconsistent with such an order. The application RN SLC/10/96 provides an illustration. In that case reference was made to the apportionment as part of the evidence but it was not suggested that the Court had to give conclusive effect to it by treating the land between the admitted croft No. 26 and the croft 25 as having been definitively found to be common grazings. Apportionment orders may be conclusive in relation to land which is clearly within the jurisdiction of the Commission as part of the common grazings. This would not necessarily conflict with the Court’s power to determine that a particular area was not, in fact, a common grazing. Some narrow cases of potential conflict may arise. However in the present case we are faced with a direct challenge to the apportionment. We think it clear that we cannot set that decision aside.”

[72] The Westminstercase is reported only in respect of that general point. Unlike Ms Davie and Sir Crispin we have the advantage of access to the full decision and perusal of it shows that the existence of the apportionment order – which was granted on the basis that the respondent Mr D. F. MacDonald had shares in the Moss Common Grazings – did not prevent the Court from holding that Mr MacDonald had not in fact had shares in these Grazings; see pages 25, 38 and 42 of the Court’s Order and Note. It seems to us therefore that Westminster is authority for the following propositions: (1) that this court does not have power to determine any question decided by the Commission in the discharge of any of its functions under the 1993 Act where no question of law arises; (2) that this court does not, therefore, have a jurisdiction to review the general merits of an apportionment order; but (3) that the Court’s jurisdiction to decide matters normally within its own remit, in terms of sec 53(1), is not displaced by the existence of a decision of the Commission which may be inconsistent with the way in which the Court proposes to deal with that matter. Accordingly it seems to us that Westminsterfavours the applicants’ position in the present case, rather than the first respondent’s.

[73] The Court in Westminstermade reference to the case of MacIntyre v Dagg in which the Commission had successfully contended that the Land Court had no power to interfere with a decrofting direction by the Commission. In that case the Court decided that it must dismiss an application which was made in respect of land which was no longer subject to crofting tenure because it had been decrofted. The Court’s jurisdiction to entertain the application had been removed by the removal of the relevant land from crofting. The Court was not asked to set aside the decrofting direction, which was subsequently reduced by the Court of Session, and there was no basis upon which the Court could have had jurisdiction standing the decrofting direction.

[74] So far as the case of Imrie v Kerrigan is concerned we do not think anything said by the Full Court in that case is of assistance in relation to the present question.

[75] That concludes our review of the cases cited to us. It does not appear to us that anything said or decided in any of them is authority for the proposition that an administrative decision by the Commission in the discharge of any of its functions under the 1993 Act displaces the jurisdiction of this Court in relation to a matter which is remitted by the Act to this Court’s judicial function rather than the Commission’s administrative one. The determination of croft and common grazing boundaries falls within the Court’s remit, not the Commission’s, and it would be surprising if anything done by the Commission as an incidental to the discharge of its own functions under the Act had the effect of excluding that jurisdiction. Although Sitwell v Macleod and Stuart & Stuart v MacLeod were both decided before the Land Court came into existence and the discussion in the judgements was, therefore, in terms of the jurisdiction of the Commissioners on the one hand and the ordinary courts on the other, the principle enunciated in these cases holds good in respect of the distinction between today’s Commission and this Court in respect of the matters which are remitted to this Court by the 1993 Act.

Para [76] omitted

[77] For the foregoing reasons we have repelled the second plea-in-law for the first respondent. Ms Davie’s position was that in the event that we repelled that plea-in-law we should also repel her plea of “All parties not called” and we have done so.

[78] Accordingly the application will now proceed to a hearing by way of proof before answer. We think that it would be helpful if that proof were directed more precisely by way of an amended crave. What the applicants really seek in this application is a determination as to whether the land comprising the first respondent’s apportionment was part of the common grazings at the time the apportionment order was made. Why they have felt it necessary to disguise that as an application for the determination of boundaries escapes us. The true issue was not adequately focused even by the terms of the amendment moved by Sir Crispin in the course of the debate. Having decided that we have jurisdiction to deal with this application, we have also decided, in the interests of a properly focused proof, to use our power under Rule 38 of our Rules to amend the crave so as to identify the true issue in the case. [Remainder of note omitted]

For Applicants: Sir Crispin Agnew of Lochnaw QC; Messrs Anderson Macarthur, Solicitors, Inverness

For First Respondent: Ms Isla Davie, Advocate; Messrs Macleod & MacCallum, Solicitors, Inverness

For Second Respondent: Mr Donald Cameron, Advocate; Messrs Levy & McRae, Solicitors, Glasgow