Decision of the Scottish Land Court

Archie MacKinnon (Appellant) v The Crofting Commission (Respondents)

Case reference SLC 147/16
before
Lord Minginish, Chairman and Tom Campbell
24 July 2017

[1] This is an appeal by Mr Archie MacKinnon, who is the tenant of croft 9 Bohuntin, Roy Bridge, Inverness-shire, the Grazings Clerk of the Bohuntin Common Grazings and Secretary to the Bohuntin Sheep Stock Club, against a decision of the Crofting Commission (“the Commission”) dated 13 October 2016, whereby, on an application by Mr Neil MacDonald and Mrs Shona MacDonald, they granted a decrofting direction in respect of 0.175 ha of land, part of croft 2 Bohuntin, of which part the MacDonalds are owners, for the purpose of building a dwellinghouse.

[2] The appeal is brought under grounds (b), (d), (e) and (f) of sec 52A(3) of the Crofters (Scotland) Act 1993 (“the Act”), that is to say that the Commission made a finding-in-fact material to its decision without having sufficient evidence on which to base that finding; that they took into account certain irrelevant or immaterial considerations; that they failed to take account of certain relevant or material considerations; and that they exercised their discretion in an unreasonable manner.

[3] We heard the appeal, in the form of a debate, at Roy Bridge on 8 June 2017 when the appellant, assisted by his wife, Mrs Catherine MacKinnon, presented his own case and the respondents were represented by their in-house solicitor, Mr David Findlay. Although appeals such as this do not involve us in carrying out any kind of assessment of the land in question, we were invited to inspect the area in question, and, since we were hearing the case locally, we did so. It had the advantage of allowing us to see for ourselves what, on the ground, the case was about.

Factual background

[4] In order to put the appeal into context, it is necessary to say something about how croft number 2 came to be as it is today. The following narrative is taken from (i) the “Croft Details” section of the Commission’s Casework Paper (production 3), (ii) an email from Mr Stuart Hogg, Regulatory Casework Officer with the Commission, to the appellant dated 3 September 2015 (production 16) and (iii) additional information obtained by way of clarification from the Commission and Mr MacKinnon while considering our decision. It is not thought to be in dispute.

[5] Number 2 Bohuntin originally extended 4.277 ha and had a share in the Bohuntin Common Grazings.

[6] In 1979 an area of 0.077 ha, being the site of the original croft house and an area of garden ground, was decrofted at the request of Mrs Dolina MacDonald who was then tenant of the croft but had obtained a feu of the house site and garden ground.

[7] In or around 1987 an area of 0.38 ha was detached from the croft and added, as an enlargement, to croft number 4. This area is shown blue on one of the plans contained in production 3 and is understood to belong to or be tenanted by a Mr T MacKintosh. Its removal from number 2 left a very irregularly shaped croft, as is seen from said plan.

[8] On 17 April 1997 a John Keenan became tenant of the croft and grazings share by assignation from his father, who had succeeded said Mrs MacDonald as tenant. It then extended to 3.82 ha.

[9] In April 1999 Mr Keenan and his wife, Anne, bought the croft, becoming owner-occupiers of the land comprising the croft while Mr Keenan remained tenant of the grazings share.

[10] Shortly afterwards they sold (or at any rate disponed) 0.19 ha at the north end of the croft to Mr and Mrs MacDonald with entry at 15 June 1999. This is the area with which the present application is concerned. At that point and until the decision now appealed against it remained in crofting, as part of number 2 Bohuntin. Although it is of no consequence, it is understood (from Mr MacKinnon’s letter of objection to the application of 17 June 2015, production 13) that Mrs MacDonald is Mr & Mrs Keenan’s daughter.

[11] Sometime prior to February 2009 the Keenans must have got consent from the Commission to divide the croft and they sold 3.24 ha of it to a company called Magian Ltd with entry as at 5 February 2009. This area included all of the arable land on the croft. Now a croft in its own right, it was given the name “Carn Darach” and was let by Magian Ltd to that company’s owner, Mr Paul Robert Gillies, with effect from 23 June 2009. More or less contemporaneously Mr Keenan assigned the grazings share which had hitherto pertained to 2 Bohuntin to Mr Gillies, that assignation taking effect on 30 June 2009.

[12] At some subsequent point Mr & Mrs Keenan obtained a decrofting direction in respect of 0.2 ha of land at the south end of the croft for the purpose of building two houses and two sites were subsequently sold and had houses built on them.

[13] What then remained of 2 Bohuntin extended only to 0.38 ha (including the land sold to Mr and Mrs MacDonald in 1999), none of it arable, and with no grazings share.

[14] On a date which is not clear from the papers, Mr and Mrs MacDonald applied to the Commission for a decrofting direction in respect of their 0.19 ha part of 2 Bohuntin. The application was advertised, drawing one response in the form of an objection from the present appellant, and subsequently granted subject to the removal of an area of 0.015 ha along the west side to preserve access to the common grazings which lie to the north of the croft. That decrofting direction, dated 13 October 2016 is the decision appealed against.

[15] Since, for his convenience, we allowed Mr Findlay to be heard first, we will, unusually, set out the respondents’ submissions first.

Submissions for the respondents

[16] Mr Findlay invited us to sustain the respondents’ plea-in-law that their decision be confirmed and to dismiss the appeal.

[17] He went over the statutory provisions relating to decrofting, being, in the order in which he addressed them, secs 24(3), 25 and 20 of the 1993 Act. He then referred us to the authorities which set out what is required of a decision-maker such as the Commission in arriving at and explaining decisions such as this. The cases and dicta to which he referred are well known and the principles they lay down are not in dispute, so instead of rehearsing them in detail we shall simply list them for the record: they were Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at pages 347-348; Moray Council v Scottish Ministers 2009 SC 691, per Lord Justice-Clerk Gill at para [30]; Ritchie v Aberdeen City Council 2011 SC 570, per Lord Justice-Clerk Gill at paras [11] and [12]; Padfield & Ors v Minister of Agriculture, Fisheries and Food & Ors [1968] AC 997, per Lord Reid at page 1030; Carr v Secretary of State for Scotland 1998 SCLR 160, per Lord Milligan at page 166 and City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at 44G to 45B.

[18] Focusing more closely on the subject-matter of this case, reference was made to Knight v Crofters Commission 1999 SLCR 102 at 114 for the proposition that the Commission was entitled to use their own specialised knowledge when considering the facts of a particular case.

[19] Turning to the law on decrofting, the existence of a “reasonable purpose” within the meaning of sec 20 of the Act, gave rise to a rebuttable presumption in favour of decrofting; Ferguson v Crofters Commission 1999 SLCR 77. Against that, account would have to be taken of adverse effects on any of the other interests involved; Wotherspoon v Crofters Commission 2008 SLCR 286 at paras [29], [30] and [31]. Although policy had a part to play, each case must be decided on its own merits; MacDougall v Crofting Commission SLC/75/14, decision of 26 May 2016 at para [41].

[20] Turning to the Commission’s decision in this case, it fell to be considered on the basis of the information available when it was made; Nicolson v Crofting Commission 2013 SLCR 97 at 98. That was particularly relevant in relation to the Commission’s state of knowledge as to demand for crofts in Bohuntin at the time. They had not been aware of any specific demand, only general interest in obtaining crofts in Bohuntin and surrounding townships. Adequate reasons for the decision were given in the decision letter. The reader was left in no real or substantial doubt as to what the reasons were or the material considerations which had been taken into account in reaching it. The Commission had carried out the required balancing act, weighing the rebuttable presumption in favour of decrofting where there was reasonable purpose against the effect on the good of the croft and the general interest of the crofting community. They had decided that, on the facts of this case, the latter did not outweigh the former. The appellant may complain that the respondents had not attached sufficient weight to considerations adverse to the general interests of the crofting community but not that any relevant consideration had been overlooked altogether; cf Eunson v Crofting Commission c Crofting Commission SLC/10-14/15, decision of 1 March 2016, para [30]. Having done all of that, the Commission’s decision could only be set aside if it was perverse or irrational; Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland, supra.

[21] Mr Findlay then addressed the individual grounds of appeal.

Sec 52A(3)(b)

[22] In this ground of appealit was being said that the Commission had had insufficient information for its conclusion that there was no demand for crofts in the area, a conclusion arrived at simply because the advertisement of the decrofting application had not resulted in any expressions of interest. Mr Findlay submitted that the Commission were not obliged to go out canvassing for interest; Gray v Crofters Commission 1980 SLT (Land Court) 2 at page 7. It was not their practice to do so. Nor were their Area Assessors used for that purpose any more. A report was, however, requested from the Scottish Government Rural Payments and Inspections Directorate (“SGRPID”) and that might be expected to comment on demand for crofts. Here the croft was very small and offered a new entrant to crofting very little. The Commission had been entitled to attach some significance to the lack of a response to the advertisement of the application and to what the croft had to offer in assessing probable demand for this particular croft.

Sec 52A(3)(d)

[23] Turning to the second ground of appeal, it was not the case that the Commission had taken account of irrelevant or immaterial considerations. It was relevant to have regard to the planning permission in principle which had been granted here and to its requirement that drainage arrangements be intimated to the planning department for approval before building began. The fact that the planning authority was dealing with anticipated drainage problems was a matter to which the Commission had been entitled to have regard in granting decrofting.

[24] In allowing decrofting for the purpose of house-building, they had also been entitled to take account of the need for population retention, although that had not been a determining factor in their decision. Likewise they had also been entitled to take account of the information in the SGRPID report as to the limited potential of the croft and the effect of that on interest from new entrants.

[25] At this point in his submissions Mr Findlay referred to the case of Hastings v Crofters Commission (No 2) 1993 SLCR 113, which concerned the refusal of a decrofting application in nearby Inverroy. In that case this Court would have been prepared to overturn the Commission’s proposed refusal of decrofting but for the fact that planning permission had been refused. That was despite the fact that the area to be decrofted was larger than was the case presently and included some arable land. The Court had considered an increase in population to be a positive thing in the general interests of the crofting community.

Sec 52A(3)(e)

[26] In relation to the third ground of appeal – that the Commission had failed to take account of relevant or material considerations – it was clear from the decision letter that the Commission had been aware that the croft had previously been the subject of division and decrofting but it would have been wrong for the Commission to prejudge this application because of what had happened in the past. To take account of that history in that way would have been to fetter their discretion when considering the merits of this application.

Sec 52A(3)(f)

[27] Having regard to the wide discretion afforded to decision-makers such as the Commission in terms of the principles set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 it could not be said that the Commission’s decision had been unreasonable, absurd or perverse. It could not be said that no reasonable authority could ever have come to it. Reference was made to Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 and to Puhlhofer v Hillingdon London Borough Council [1986] AC 374 at 410 for the proposition that a decision of this kind could only be struck down if it was irrational or, per Lord Scarman in R v Secretary of State for the Environment, Ex parte Nottinghamshire County Council [1986] AC 240 at 247-248, verging on absurdity.

[28] The present decision was soundly based. The purpose for which decrofting was sought was a reasonable one and the extent of the land decrofted was not excessive. In the exercise of their discretion the respondents had taken the view that the land was of insufficient potential and value to the general interest of the crofting community at Bohuntin to outweigh the presumption in favour of decrofting. That had been a reasonable exercise of their discretion and their decision should be upheld.

Appellant’s submissions

[29] Mr MacKinnon began by saying that there was an informal expectation that Grazings Clerks would address important crofting issues when they arose. It was not formally part of their duties but it was expected of them; hence his involvement in the present case. He then outlined his objections to how the Commission had dealt with 2 Bohuntin over the past 17 years.

[30] The first question was as to what consideration the Commission had given to the good of the croft when they agreed to its division in a way which took the arable land out of it. Any sensible division, as within a family, for example, would have divided it so that each part would have some arable land and a site for a house. Instead, what had happened in this case could be replicated by any absent or inactive crofter wishing to exploit his croft by way of sale of house sites. It resulted in a situation in which any SGRPID reporting officer was bound to say, of the denuded croft, that it was of little agricultural value. That in turn made it more likely that decrofting would be granted.

[31] Whatever legal obligation was on the Commission to consult about division of crofts, they ought to consult more widely than they had on this occasion. At no time had he, as Grazings Clerk, been informed of the application for consent to division nor that division had taken place. He described consultation by way of advertising an application accompanied only by a map as “one dimensional” whereas there was a need for three dimensional consultation, which we take to mean positive engagement with the local crofting community among others (such as SGRPID officials). The Commission had not performed due diligence in their consideration of successive applications to do with this croft. Instead they had allowed it to be split, sold and decrofted in what Mr MacKinnon described as “quite a compact process”.

[32] This case was an example of a loophole which was being used by estate agents and crofting law specialists to obtain house sites and sell them commercially. Nothing would change unless crofters stood up to be counted.

[33] The Commission were in any event wrong in restricting their consideration to the agricultural value of the croft. Crofting wasn’t all about ploughing and stocking. Even small areas of land could be used for polytunnels or market gardens and there was also the potential for diversification beyond that. The Commission had interpreted “agricultural value” too narrowly. They had also failed to consider the good of the croft. They had failed to take account of the fact that this small croft had already had two house sites carved out of it.

[34] In that context, one had to ask whether what was going on here was a commercial exercise. If the intention was simply to build a house for the MacDonalds’ own use that could be done without decrofting the land, so there was a question as to what the ultimate purpose was. In the past eight years four new houses had been built in Bohuntin, all of them as speculative developments. That was quite a lot in a township of only 11 crofts.

[35] As to alleged lack of demand for crofts, if any land became available in Bohuntin there would be demand for it. This was another subject on which the Commission had not consulted properly. There had been no dialogue with the township. Had there been they would have been left in no doubt that any croft which became available in Bohuntin would have been “well over-subscribed”.

[36] Having made those points, Mr MacKinnon suggested that his wife could read out the grounds of appeal however there was no need for that since we had them before us. Instead we took the time to read them, some recent amendment to them having been made, and asked some questions for clarification. What follows is taken from the grounds of appeal.

Sec 52A(3)(b)

[37] The Commission did not have sufficient evidence to allow them to conclude that there was no demand for crofts in Bohuntin. They ought not to have confined themselves to the fact that “no intimation of demand was received in respect of this application”. They were, or ought to have been, well aware that there had been considerable demand for crofts within the township that had become available for letting on the open market. Had they consulted locally, as they ought to have done, they would have been left in no doubt about that.

Sec 52A(3)(d)

[38] Objection was taken to the Commission’s view that “there may be benefits associated with the reasonable purpose of erecting a dwelling-house with regard to supporting population retention”. Population retention was only relevant where there was a problem of that kind and there was no problem with population retention in Bohuntin and the surrounding area. The Commission had therefore taken account of an irrelevant factor. In any event the statement that “there may be benefits” was too vague and, unsupported, as it was, by evidence, it did not provide an adequate foundation for the Commission’s decision.

[39] The problem in Bohuntin was quite the opposite: it was one of overdevelopment and “gentrification”, which had the effect of marginalising active crofters as well as causing physical problems to do with drainage. Two house sites had already been decrofted from this croft and sold to people with no connection to crofting. The protection of crofting townships and croft land ought to be the Commission’s priority, not the facilitation of speculative development.

Sec 52A(3)(e)

[40] The Commission had failed to acknowledge that two house sites had already been decrofted from this croft for speculative development and that if Mr & Mrs MacDonald needed a house for themselves, they could have bought one of those. They had also failed to consider the impact of the loss of half the croft on what would remain of it. This was something which they were obliged to consider in relation to purposeful use because that was defined in sec 5C(8) of the Act as “any planned and managed use which does not adversely affect (a) the croft, (b) the public interest, (c) the interests of the landlord or (if different) the owner; or (d) the use of adjacent land” (appellant’s emphasis). Here the croft, the public interest and the use of adjacent land would all be adversely affected by the proposed decrofting.

Sec 52A(3)(f)

[41] The Commission had not given due consideration to the facts which had given rise to the present case and the precedent that would be set by consenting to “this blatant decimation of workable croft land by stealth”. If the land in question had fallen out of productive use was that not the fault of the Commission in failing to enforce the duty on crofters to cultivate and maintain their crofts by sec 5C of the Act? The Commission ought to have engaged with neighbouring crofters to ascertain whether the land might be put to better crofting use. Instead they had dismissed this area of land as insignificant, a conclusion that could never be right where 50% of a croft was being lost. In approving this application the Commission had exercised their discretion in an unreasonable manner and not adhered to their overarching aim of preventing land from being lost to crofting.

[42] In coming to their decision the Commission had also behaved inconsistently. Reference was made to the case of MacGillivray v The Crofting Commission SLC/30/16, decision of 13 October 2016, in which this Court’s decision to uphold the refusal of decrofting for a housing development had been applauded by the Commission.

[43] In coming to a decision on a matter such as this the Commission ought to have had the best interests of the resident active crofting community and the continuing viability of crofts at the forefront of their minds. That had not been the case and the decision they had come to had been unreasonable. The appeal should therefore be upheld.

DECISION

[44] The appellant, supported by his wife, has taken this appeal because of the strength of his feelings about the process of selling off croft land for housing. Moreover, in his role as Grazings Clerk he feels that he has a responsibility to challenge a process he describes in the grounds of appeal as “the decimation of a croft”. He sees the present case as an egregious example of that process in that he submits that events have been engineered so as to produce a situation in which decrofting was more likely to be granted. The critical decision, in that regard, he submits, was the Commission’s consent to the division of 2 Bohuntin in such a way that what was being retained was not a viable crofting unit and, therefore, immediately vulnerable to decrofting.

[45] For our part, however, we have to confine our consideration of matters to the facts and circumstances of this particular application for decrofting and how the Commission dealt with it. In order to succeed the appellant has to show that they erred in one or more of the ways set out in the grounds of appeal, being paras (b), (d), (e) and (f) of sec 52A(3). We consider each of them in turn.

Para (b) – that the Commission made a finding as to fact material to their decision without having sufficient evidence on which to base it

[46] The finding-in-fact complained of here is that there was no demand for crofts in Bohuntin. In fact, when one reads the Commission’s decision letter of 13 October 2016 one sees that they did not actually go that far. All they said was “With regard to the general interest of the crofting community and in particular the demand, if any, for a tenancy of the croft, the Commission notes that no intimation of demand was received in respect of this application”. That is simply a statement of fact; the only response to the advertisement of this application was the objection from Mr MacKinnon. The Commission do not go on to conclude that there would be no demand if the croft actually became available. They simply say no more about demand.

[47] That is enough to dispose of this ground of appeal: the finding-in-fact challenged is not one which the Commission made. However, Mr MacKinnon’s criticisms of the process whereby the Commission sought to assess demand deserve further discussion. Although that would more properly be part of our consideration under (e) below (where we discuss whether the Commission failed to take account of relevant or material considerations) it is convenient to deal with it here.

Mr MacKinnon’s fundamental complaint is that the Commission did not investigate the existence or otherwise of demand adequately, for example by local consultation. That criticism has caused us to examine this aspect of matters in some detail.

[48] The starting point is what the Commission is statutorily obliged to do in terms of assessing demand. That is contained in sec 25(2) of the Act which reads as follows:

“Without prejudice to subsection (1)(b) or (c) above, the Commission, in determining whether or not to give such a direction [i.e. a decrofting direction], shall have regard to the general interest of the crofting community in the district in which the croft is situated and in particular to the demand, if any, for a tenancy of the croft from persons who might reasonably be expected to obtain that tenancy if the croft were offered for letting on the open market on the date when they are considering the application.”

[49] A point to note from that is that the demand to which the subsection refers is demand for the tenancy of the particular croft in respect of which the decrofting direction is made, not to the general level of demand for tenancies in the locality of the croft. At first blush this restriction seems surprising but then one realises that no amount of general demand in the locality is relevant if no one wants the tenancy of the particular croft in question. We are aware, however, that the Commission’s practice (rightly in our view) is to take account of general demand in the area where there is evidence of that.

[50] Subsection (6) of sec 25 is also relevant. It reads:

“The Commission shall advertise all applications under the said section 24(3) or subsection (4) above (except an application made in respect of a part of a croft consisting only of the site of the dwelling-house on or pertaining to the croft or only of land the conveyance in feu of which was granted under section 17 or 18 of the 1955 Act) in one or more newspapers circulating in the district in which the croft to which the application relates is situated, and before disposing of such an application shall, if requested by the applicant, afford a hearing to the applicant and to such other person as they think fit.”

[51] It should be noted that this scheme for intimation of and objection to decrofting applications is different from that contained in sec 58A of the Act, which applies where a party is seeking the approval and consent of the Commission in terms of any requirement for such approval or consent under or by virtue of the Act, such as consent to assignation of a tenancy under sec 8 or division of a croft under sec 9. When a decrofting direction is sought one is not asking the Commission’s consent to or approval of something one proposes to do oneself but asking them to do something at their own hand. That distinctionmay not be entirely convincing but it seems to be recognised in the different procedures set out in sec 25 and sec 58A.

[52] Beyond the requirement to advertise the application and hold a hearing if the applicant asks for one, there is no other statutory requirement on the Commission in terms of, for example, consultation with the local crofting community. That is not to say that the Commission cannot take such additional steps; it is only to say that, so far as the statutory scheme is concerned, it appears to be envisaged that evidence of demand will emerge in the way of response to the advertisement of the application.

[53] That caused us to investigate how such advertisements are worded. A cursory examination of recent issues of The West Highland Free Press discloses no consistency. Some advertisements contain wording such as “The Commission will consider any expressions of demand when deciding whether to issue a Direction” while others do not mention demand. In the present case the advertisement which appeared in The Oban Times on 21 May 2015 made no mention of demand but said “Comments can be made to the Crofting Commission by any member of the crofting community within the locality of the land, within 28 days of the date of this newspaper”. The reference to 28 days made us think that the Commission were proceeding under sec 58A after all, but we think it more likely that, since there was a need to specify some time limit for responses, it made sense to use the same latitude as allowed in that section.

[54] This inconsistent wording caused us some concern, so we asked Mr Findlay to explain it. He helpfully responded in an email to the Court on 14 July saying this:

“The standard wording used by the Commission when advertising an application made under section 24(3) of the Crofters (Scotland) Act 1993, and processed under section 25(1)(a) of the 1993 Act, includes the wording contained in your email below [i.e. the wording referring to expressions of demand]. I am advised by the Commission that the advertisement used in the present case did not contain this wording due to an oversight by officials. The Commission has also informed me that its former practice was that applications for decrofting dwelling-house sites extending to 0.15 ha or less did not make any reference to expressions of demand, but the current practice is that the advertisements of all applications (excluding statutory house sites, which need not be advertised) make reference to demand. I assume that the official(s) concerned inadvertently used the former wording applicable to sites extending to 0.15 ha or less when drafting the advertisement.

The Court will of course be aware that the 1993 Act does not direct the Commission to use any particular form of advertisement of a decrofting application.”

[55] Our own brief consideration of recent advertisements of decrofting applications suggests that this is not the only case in which the relevant wording has been omitted. That is clearly not a satisfactory state of affairs and no doubt the Commission will now ensure that all future advertisements (with the exceptions Mr Findlay mentions) carry the relevant wording. The question for us is what effect, if any, should the failure to incorporate that wording in the present case have on this appeal.

[56] The advertisement was not the only mechanism by which the Commission could have addressed the question of demand. Since they no longer use their Area Assessors for this purpose they could have asked the SGRPID reporter to address it or, since there was a Grazings Committee in place which offered a ready point of consultation, they could have approached them. They did neither: the list of things SGRPID were asked to address (page 3 of the Casework Paper, production 3) made no mention of demand and there was no attempt to consult the Grazings Committee.

[57] Despite those failures, however, these two actions (the advertisement and the instruction of a SGRPID report) resulted in de facto consultation taking place. The advertisement alerted Mr MacKinnon to what was going on and he submitted a letter of objection which was followed up by other correspondence. His objection led to the SGRPID reporter visiting him and discussing matters with him. That is what we mean by “de facto consultation”; it was not set up as a step in a consultative process but it served the same purpose. It is significant that, although many pertinent complaints are made in Mr MacKinnon’s letter of objection (for example, the history of decrofting applications affecting this croft, a problem with access to the common grazings, the viability of what would remain of the croft if the application was granted and a possible boundary dispute), the existence of demand for the tenancy is not one of them, nor, evidently, was any mention of it made to the SGRPID reporter.

[58] It may be that the reason Mr MacKinnon made no mention of demand was that he was not asked about it specifically and he did not realise its significance in relation to decrofting, but we hardly think that is likely in someone as familiar with the issues as he clearly is. The whole point of his objection was to preserve the little that was left of 2 Bohuntin as a viable unit (if barely so) and that must have been in the hope that it would be of interest to a tenant in the future. Had he been aware of existing demand for that unit one would have expected him to raise it with the Commission and the SGRPID reporter. We understood from his submissions at the hearing that the demand to which he was referring was general demand for crofts in the Bohuntin/Roy Bridge area rather than specific demand from identified individuals who would be interested in the tenancy of this croft were it available.

[29] Accordingly we are of the opinion that what the Commission did on this occasion was adequate for the purpose of investigation of the existence of demand. It was adequate because it “worked” and it worked because it brought about what was in effect a consultation with the Grazings Clerk who would no doubt have mentioned demand for the tenancy of the croft if he had been aware of any.

[60] For these reasons we are satisfied that the failure to mention demand for the tenancy in the advertisement of the application does not invalidate the Commission’s decision: ironically, they have been saved from the possible consequences of their failures by Mr MacKinnon’s response to the advertisement and the engagement to which it led.

Para (d) – that the Commission took into account certain irrelevant or immaterial considerations

[61] Under this head the appellant argues that population retention was irrelevant because Bohuntin does not have a problem with population retention. This argument is impossible to sustain in the face of a duty on the Commission, in terms of sec 1(2A)(a) of the Act, to have regard to the desirability of supporting population retention in the crofting counties. In respect of Mr MacKinnon’s point that the problem in Bohuntin is the building of too many houses, causing problems with drainage, that is a matter for the planners, not for us. As to his point that the promise of any benefit in terms of population retention was too vague, that can hardly be the case where the purpose of the decrofting is to provide a home for Mr & Mrs MacDonald. Mr MacKinnon was suspicious as to whether that was their true intention but we have no basis for doubting it, nor did the Commission.

Para (e) – that the Commission failed to take account of certain relevant or material considerations

[62] One of the bases of Mr MacKinnon’s suspicion is that Mr & Mrs MacDonald could have bought one of the house sites already decrofted and he says the Commission should have taken account of the fact that they did not do so as a relevant and material factor when considering this application. This is part of his wider argument that the Commission should have taken account of the whole history of what had been done with this croft going back to its division in 2009.

[63] It is not the case that the Commission failed to take account of this history but, having done so, they drew the very opposite conclusion from the one Mr MacKinnon says they should have drawn. This is what the decision letter said on the matter:

“In considering the impact of the proposed decrofting on the general interest of the crofting community in the district, the Commission noted that the greater part of the croft 2 Bohuntin, extending to 3.24 ha, was re-let as a new unit known as Carn Darach in June 2009, with the share in Bohuntin Common Grazing subsequently being assigned to the tenant of the Carn Darach (sic) in August 2009. The Commission notes the concerns expressed that the area being decrofted, although relatively modest, constitutes a substantial proportion of the croft land pertaining to croft 2 Bohuntin, but is of the view that croft 2 Bohuntin in its present state, having been subject to previous division and decrofting, could be put to only limited crofting uses. The Commission is of the view that the decrofting of a relatively modest area of 0.17 ha from a croft with limited potential, and in respect of which no expressions of interest have been obtained, will not have a sufficiently material impact on the crofting community as a whole at Bohuntin to outweigh the established reasonable purpose.”

[64] Many, like Mr MacKinnon, would deplore this approach, which compounds the adverse effects of previous decisions by allowing them to provide the basis for further decimation, to use his word. Nevertheless, we consider that the approach taken by the Commission was the only one open to them. They had to apply the law to the facts as they were when Mr & Mrs MacDonald’s application came before them. For one thing, to do otherwise would have been unfair to Mr & Mrs MacDonald, who would have been penalised for things done by others in which they played no part. For another, the history of how things came to be as they were was irrelevant to the task which the Commission had to carry out when they came to consider this application. At that point they were faced with an application for decrofting for a reasonable purpose. They had to carry out a balancing act, weighing the strong but rebuttable presumption in favour of decrofting which arises where a reasonable purpose is established (Ferguson v Crofters Commission, supra) against any adverse effect on the croft itself and the general interest of the crofting community. That could only be done on the basis of the facts as they then stood. For these reasons the history of previous decisions was not a relevant or material matter which the Commission failed to take into account.

[65] Mr MacKinnon also submits, under this head, that the Commission failed to take account of the impact loss of half the croft would have on the remaining half. On that matter the decision letter says:

“The Commission considered the impact of decrofting half of the croft from crofting tenure; the fragmented nature of the croft; the quality of the land; its current use and the fact that the land is largely wooded and has not been kept in productive use for a considerable length of time. Accordingly, in light of the evidence that the land is of relatively poor quality and has not been in productive uses for a considerable period of time, the Commission considers in carrying out its balancing exercise that the impact of the loss of a relatively small area of ground of such a nature on the general interest of the crofting community in the district will be relatively small and is outweighed by the benefits associated with the reasonable purpose of erecting a dwelling-house.”

[66] That passage clearly acknowledges that half the croft is being lost to crofting and considers the effect that loss is likely to have. Although it does not expressly address the effect on the rest of the croft, as opposed to the general interest of the crofting community, it is clear that the Commission took the view that the land was of little value and that the effect of its loss would be correspondingly minimal. That was a view they were entitled to take, given the SGRPID report.

[67] Mr MacKinnon also makes the criticism that the Commission, in discounting the value of this area of land to that extent, took too narrow a view of its potential. For example, no consideration was given to its possible use for polytunnels or any of the “purposeful activities” envisaged by the provisions of sec 5C of the Act. However, there was no evidence of the potential of the land for such use before the Commission. The SGRPID report does not address it and the state of the land, as described therein, does not suggest such potential. Accordingly we do not think it can be said that there was information as to such potential available to the Commission which it failed to take into account. Nor is it reasonable to expect the Commission to carry out its own assessment as to the potential of the land for other purposeful use. The place for that is the SGRPID report and it would be no bad thing if SGRPID reporters were routinely asked to address that question specifically. However, we are satisfied that in this case the condition of the land did not support the view that it had any such potential. Of course Mr MacKinnon blames the Commission for letting the land get into that state but that is a criticism outwith the scope of this appeal.

[68] Accordingly we are satisfied that the Commission did not fail to take account of relevant and material matters and that this ground of appeal does not succeed.

Para (f) – that the Commission exercised their discretion in an unreasonable manner

[69] We do not accept that in coming to their decision the Commission exercised their discretion unreasonably. We can detect no fault in their methodology, their reasoning or their conclusion. As to methodology, their starting point was, correctly, the acknowledgement that decrofting was being sought for a reasonable purpose. They then took on board the significance of that in terms of setting up a strong but rebuttable presumption in favour of decrofting. They checked that the extent of land was not excessive in relation to the purpose. They balanced the presumption against the general interest of the crofting community in the district. Although loss of half of its area was clearly going to have an adverse effect on the croft, given the nature of the land in question and the absence of evidence of demand for the tenancy of the croft, no harmful effect on the general interest of the crofting community in the district was identified. In those circumstances it cannot be said that the Commission exercised their discretion in an unreasonable manner, far less a perverse or irrational one.

[70] All of that said, however, they would be well advised to pay attention to some of Mr Mackinnon’s criticisms in this case. His main criticism was as to the division of the croft in 2009, whereby it was gutted of its best land leaving the rest more vulnerable to decrofting. Against that, it can be said that the process has not diminished the township of Bohuntin: a viable croft survives although it is Carn Darach, not number 2. But a question remains as to why a division of the croft such that one of the two resultant crofts was barely, if at all, viable was permitted. As this Court and the Commission are well aware, the fragmentation of crofts by the sale of house sites is a matter of real concern to many in the crofting community and it is clear from the present case that a situation can arise whereby de-crofting becomes self-perpetuating, with each successive one granted making it more likely that others will follow. The avoidance of such a situation seems to us a relevant consideration wherever the Commission is faced with an application for consent to division in future.