THE COURT

Sheriff MacLeod, Mr A Macdonald)

ANDERSON v CROFTERS COMMISSION

(Application SLC 17/13 – order of 14 January 2014)

CROFTING - APPORTIONMENT OF COMMON GRAZINGS - APPEAL AGAINST COMMISSION DECISION TO REFUSE APPORTIONMENT - DETRIMENT TO OTHER SHAREHOLDERS

The appellant had applied for an apportionment in respect of his share in the Heogs Park Common Grazings, Unst, Shetland, for the purpose of developing his herd of Shetland Ponies. The grazings were in active use by several of the other shareholders, also for rearing Shetland Ponies. After sundry procedure, including a hearing, the application was refused on the grounds that (i) approval would not be in the interests of the crofting community because of the fragility and size of the grazings which were subject to an SSSI; (ii) the successful management of the grazings by shareholders would be detrimentally affected; (iii) approval would not be in the interests of the management of the shared assets; and (iv) the shareholders and Grazings Committee did not support the application. Appeal was taken on the grounds that the Commission had (i) made material findings-in-fact for which there was insufficient evidence, (ii) taken irrelevant and immaterial considerations into account; (iii) failed to take account of certain relevant and material considerations; and (iv) exercised its discretion in an unreasonable manner.

HELD appeal refused except in respect of the Commission’s first ground of refusal, which there was no evidence to support. However, that did not affect the soundness of the Commission’s other grounds of refusal, for which there was sufficient evidence. The Commission had not taken into account irrelevant or immaterial consideration, nor failed to take account of relevant or materials one and had not exercised its discretion in an unreasonable manner. The removal of a significant area of the better quality land on the grazings was, in and of itself, a detriment to the management and use of the grazings by other shareholders which, in the face of concerns that the apportionment would be unfair to other shareholders and a comment in the SGRPID report on the apportionment to the effect that there was a strong case for a planned scheme of apportionment, would not be adequately compensated for by the extinguishing of the appellant’s souming in a situation.

The Note appended to the Court’s Order was as follows:-

[1] The appellant is a shareholder in the Heogs Park Common Grazings, Unst, Shetland. On 20 April 2008 he applied to the Crofters Commission (“the Commission”) for an apportionment of 30.75 hectares of the grazings to him for his exclusive use in terms of sec 52(4) of the Crofters (Scotland) Act 1993 (“the Act”). The Heogs Park Common Grazings extend to just over 176 ha and are, unusually, used exclusively for the rearing of Shetland Ponies. There are six shareholders.

[2] The application was intimated to the landlords, to the Clerk of the Heogs Common Grazing and to Scottish National Heritage (“SNH”), the grazings being a Site of Special Scientific Interest (“SSSI”). It was advertised in the Shetland Times of 25 April. The landlords made no response. The Grazings Clerk, Mr John A Thomson, responded by letter to the Commission dated 28 April in which he said that he had no objection to apportionments in the Heogs provided they were fair to other shareholders and went on to express concerns about the area encompassed by the proposed apportionment. Some of these were as to the movement of stock around the apportionment and some were of a more personal nature arising from the inclusion of the site of a cro pertaining to his croft within the apportionment. By letter dated 12 May SNH objected to the application on the ground that the western boundary ran through the centre of a “Cerastium monitoring area” which was likely to be damaged as a result of livestock following the fence lines. No one else responded to the application at that stage.

[3] On 1 September 2008, as is customary in apportionment cases, the Commission instructed the Lerwick office of the Scottish Government Rural Payments and Inspectorate Directorate (“SGRPID”) to investigate the application and report back. Pursuant on these instructions an “inspection plus interview” was held at the locus on 10 November 2008. Present were SGRPID’s reporting officer, Mr Robert McIldowie, Mr Drew Ratter, Convener of the Commission, Mrs Mary Ross, a Crofting Services Officer with the Commission, said Mr Thomson and three other shareholders in the grazings, Mr Alexander Priest, Mr George Spence and Mrs Ina Ritch. At that meeting and subsequently the applicant made clear that he was prepared to amend his application so as to exclude the area of concern to Mr Thomson and wholly include the Cerastium monitoring area within the apportionment, thus meeting SNH’s concerns. He produced a plan to that effect

[4] On 15 November Mr Thomson again wrote to the Commission, this time on behalf of himself and the four other shareholders. The letter expressed concern about “the removal of the major part of the better grazing from the scattald”, which, it was said, “[would] have a detrimental effect on the grazings”. The letter closed by asking the Commission to “assess the Grazings, in the light of this proposed apportionment, to ensure equality for all shareholders including the applicant”.

[5] Mr McIldowie completed his report on 17 December 2008 and it was received by the Commission shortly thereafter. Among other things it recorded the steps taken by the applicant to meet the concerns which had been expressed. Although it refers to an “Area Recommended” of 30 ha, the report in fact contained no clear recommendation as to whether the apportionment should be granted or refused, that being a decision for the Commission and not for SGRPID.

[6] On 16 January 2009 the Commission intimated that it was proposing to refuse the application. They advised Mr Anderson that he could appeal against the decision by requesting a hearing. He did so. A hearing, chaired by Dr Issie MacPhail, Area Commissioner, was held on 16 March 2009. On 30 April the application was considered by a quorum of Commissioners, including Mr Ratter. They decided to refuse it on the following grounds:-

“The quorum considered the case including the report of the hearing and decided to confirm refusal of the application on the following grounds:

[7] That decision was intimated to the appellant and others on 6 May 2009 and is the decision appealed against.

Procedure in the appeal

[8] The appeal is under sec 52A of the Act. It was by stated case, as was then required in terms of subsec (2)(a) of that section. Even by the standards of that procedure it took an inordinate time to reach us, the stated case not being received by the court until 12 February 2013. Only the Commission have lodged answers to the appeal. Although it does not accord with stated case procedure in other courts, we have allowed answers and adjustments pursuant on the lodging of the stated case in this instance and in similar appeals. Happily, however, we are told that this is the last appeal under stated case procedure. The parties have consented to it being decided on written submissions. We do not set out these submissions at length. Their content will be apparent from the way in which we deal with the individual grounds of appeal.

[9] Before we come on to these, however, it has to be said that the adjustment procedure we allowed turned out to be unsatisfactory in at least two ways. Firstly it prolonged what had already been an inordinately long process. The stated case was received here on 12 February 2013. This decision comes some 11 months later, with most of the intervening time having been taken up by adjustment, submission and counter-submission. The second way in which that process was unsatisfactory was that what was intended to be adjustment or amendment, on the one hand, was not always carefully differentiated from what was intended to be submission, on the other.

[10] That latter problem has given rise to an issue with which it is convenient to deal here. In their submission of 18 April 2013 the applicant’s agents raised a new matter. Paraphrasing it, that matter was that the Commission’s decision was vitiated by being based on perceived reluctance by the applicant to fence his apportionment. This was raised as a new matter because it had only been mentioned for the first time in the ”Commission’s Position on Requisition” section of the stated case. Such a consideration does not feature in any of the other documents and in particular is not mentioned in any of the documents which show the Commission’s progress to their decision. The applicant’s agents argue that, in effect, the Commission’s then agent has let the cat out of the bag by disclosing a major reason on which the Commission surreptitiously relied. That is said to be a breach of natural justice.

[11] But no motion to amend the stated case so as to bring in an additional ground of appeal has been made. Instead what we are asked to do, in the event that we are not minded to grant the appeal, is allow an opportunity for amendment at that stage; see the applicant’s agents’ submission of 18 April 2013 final paragraph.

[12] There having been a change in the Commission’s agents since the matter complained of was introduced to the pleadings, their new agents’ response to the foregoing submission was to seek to amend the “Position on Requisition” statement by removing the reference to reluctance to fence from the stated case. This amendment was allowed, unopposed, by our order of 16 August 2013. In these circumstances, to allow the matter to be introduced, or re-introduced, to the pleadings now would not be in the interests of justice. It might help assuage any feeling of injustice on the applicant’s part, however, if we say that it seems clear to us that the Commission’s position following on the foregoing amendment must be right. Fencing is always a condition of apportionment. An apportionment is not usually effective, either legally or practically, until it is fenced. An applicant for an apportionment knows all of that. Mr Anderson knew it and the suggestion that he was reluctant to fence is, as the Commission now accept, without foundation. It seems to us equally without foundation that the Commission proceeded on the basis of an undisclosed apprehension that the applicant would not fence the apportionment if granted.

[13] There is one other matter with which it is appropriate to deal at this stage. That is a contention by the agents for the applicant that the Commission ought not to have considered the letter from the rest of the shareholders dated 15 November 2008. It is said to have come too late. We take that to be a reference to the period for observations stated in the advertisement of the application, because there is no statutory period within which objections to apportionments must be intimated. In our view, given the absence of such a statutory limitation, it was open to the Commission to consider these representations. Indeed, given that they were made by the totality of the other shareholders, it would have been inappropriate for the Commission to ignore them. This objection is therefore repelled.

Grounds of appeal

[14] In what follows we have slightly paraphrased the grounds of appeal as set out in the stated case and re-packaged them to follow the order of sec 52A(3) of the Act. Thus paraphrased the grounds are that the Commission –

(i) made the findings “at bullet points 1, 2 and 3 of [their] decision” but did not have sufficient evidence on which to base these findings; para (b) of sec 52A(3);

(ii) took into account certain irrelevant or immaterial considerations in that they considered the proposed Scottish Rural Development Programme (“SRDP”) scheme of management for the Grazings which scheme excludes the area sought to be apportioned; para (d) of said subsection;

(iii) failed to take into account certain relevant or material considerations, namely (a) the SGRPID report, (b) the applicant’s purpose in requesting the apportionment, namely good stock management, and (c) [added in the course of adjustment] the applicant’s willingness to reduce the size of the apportionment; para (e) of said subsection; and

(iv) exercised their discretion in an unreasonable manner, having failed to take up the recommendations contained in the SGRPID report and having upheld the objections of the shareholders and Grazings Committee contrary to the approach taken in granting an apportionment to another shareholder, Mr Magnus Priest, in 1976; para (f) of said subsection.

Dealing with the grounds of appeal

(i) Insufficient evidence to found findings in fact

[15] The first finding in fact complained of is that “Approval of the apportionment is not in the interest of the crofting community because of the fragility and size of the grazings which is subject to an SSSI”.

[16] Like the Commission in their comments in response to the request for a Stated Case (“Commission’s Position on Requisition” in the Stated Case), we doubt whether this is truly a finding in fact, as opposed to a conclusion or judgement arrived at by the Commission on the basis of other, primary, findings. But we will treat it as a finding in fact since that is how the appellant presents it.

[17] The first thing to be said about it is that it is very confusingly expressed. References to the “fragility” of the grazings and to their being subject to an SSSI clearly suggest environmental considerations. But there is also reference to the size of the grazings. It is not clear whether a separate point is being made in relation to the size of the grazings or whether that is related to their averred fragile environmental condition.

[18] So far as environmental considerations are concerned we are satisfied that the Commission did not have sufficient, indeed any, evidence on which to base this conclusion. One would expect to find such evidence in the Statement of Facts prepared by the Commission as part of the Stated Case. The relevant paragraph is 1.19 which is headed “The decision was made on the basis of the following facts”. Of the various facts listed in that section the only one which is relevant to environmental issues is (r), which reads “SNH expressed no objection in principle to the application but stipulated that any fence lines avoid particularly sensitive areas that may be damaged by the fencing works or by ponies tracking along new fence lines”.

[19] What that statement fails to record is that the fence line which had given rise to SNH’s concern had, by the time of the Commission’s decision, been altered to meet these concerns. That fact is recorded in the Summary of Case document prepared by one of the Commission’s Case Officers on 8 January 2009, production 13, para 3.13, and is repeated in the note of the decision to propose to refuse the application, production 14. That seems to have brought SNH’s concerns to an end. They did not attend the hearing of 16 March 2009 and have not entered this appeal despite having been given an opportunity of doing so by our order of 23 April 2013. We can find no other expression of environmental concern in the information before the Commission and it is a mystery where this ground of refusal came from, given that it was not one of the reasons given for proposed refusal in January 2009 (production 14), that no mention of it is made in any subsequent correspondence and that the only mention made of it in the account of the hearing which took place 16 March 2009 was Mr Duncan Gray, the Commission’s Area Assessor, saying that the applicant had adjusted the site of the proposed apportionment as a result of SNH’s comments. Accordingly this finding is not supported by sufficient, or indeed any, evidence.

[20] If it is the case that, in this finding, a separate point is being about the size of the grazings it is impossible to understand what that point is and we are unable, therefore, to pursue it. The appellant’s challenge to the first bullet point accordingly succeeds.

[21] The second bullet point reads as follows:-

“The unusual and successful management of the Grazings by shareholders (being managed exclusively for Shetland Ponies) would be detrimentally affected if the application was approved. This successful management has been acknowledged by SNH and shareholders, excluding the applicant, who have been awarded funding through the SRDP scheme based on the management of the Grazings.”

[22] This, again, is a conclusion rather than a statement of primary facts. The statement of facts section of the Stated Case contains seven statements relevant to this ground of refusal:-

“(e) Currently, Heogs Park Common Grazings is managed by putting one stallion out on the hill to serve all the various shareholders’ mares with the exception of the Appellant’s mares.

(m) The removal of the proposed apportionment combined with the poorer quality of the remaining grazing will adversely affect future management of the common grazings.

(n) The north boundary of the original area the Applicant applied for was considered to be too close to the steep slopes of the hill, which would be likely to restrict the movement of ponies to and from the remainder of the Common Grazings.

(q) Some of the shareholders do not use their shares and these are used by other active shareholders.

(s) The Common Grazings Committee submitted a Statement of Intent, (SOI), under Scottish Rural Development Programme Rural Priorities (SRDP-RP) and received an Amber rating to manage the hill under Coastal or Serpentine heath management at the Regional Proposal Assessment Committee (RPAC) meeting in December 2008. The proposal was made in respect of the whole of the Common Grazings less the area which the Appellant sought to apportion. This was because the Common Grazings Committee did not want to delay their application pending the decision on the Appellant’s Application.

(u) In view of the current management of the Heogs Park Common Grazings, granting the application was determined by the Commission not to be in the long term interests of the crofting community.

(v) Approval of the apportionment would remove a disproportionate amount of the better quality land. This would be detrimental to the other shareholders and the overall management of the Grazings.”

[23] The reason for quoting these findings, which are findings rather than evidence, is to identify the reasons for which the Commission came to the conclusion represented by the second bullet point of the decision. These seem to us to be (i) that the Grazings are presently successfully managed for the rearing of Shetland Ponies; (ii) that the removal of the area comprised in this apportionment (even in its amended, reduced size) from the better quality part of the Grazings will result in the remaining Grazings having a higher proportion of poor land; (iii) that this increased proportion of poor land will adversely affect management of the grazings; (iv) that there was a particular problem with the northern boundary of the proposed apportionment in terms of animal movement; and (v) that the other shareholders plan to manage the Grazings under an SRDP-RP scheme which has received approval and which does not involve the area comprised in the proposed apportionment.

[24] What evidence did the Commission have to support such findings? The first is not in dispute. The Grazings are being put to good use by a number of shareholders (66%, considered a high proportion by the SGRPID reporter; report of hearing, production 19, para 5.1). The second is indisputable: taking part of the good land away will increase the proportion of poor land in the remainder. The third is likewise self-evidently true. If this apportionment is granted the remaining shareholders will be left with a poorer resource than they presently have. They will have to manage their own stock on a smaller area of good land. So far as the fourth is concerned, as we understand matters, the difficulty related only to the northern boundary of the apportionment as originally applied for. That boundary has now been changed to mutual satisfaction. It is therefore not a good objection to the amended apportionment. The fifth conclusion is not in dispute.

[25] It seems to us that the foregoing affords an adequate evidential foundation for the Commission’s conclusion that the unusual and successful management of the grazings would be detrimentally affected if the apportionment application were approved. The detriment lies in the taking away of an area of the better land.

[26] It follows from the foregoing that we are also of the view that the Commission’s finding that approval of the application would not be in the interest of the management of the shared assets (the third bullet point in the decision) is also supported by adequate evidence. The shared assets would be impoverished by the granting of the application and therefore more difficult to manage: the other shareholders would have to be manage their stock on a smaller and poorer area of land.

[27] Accordingly, we sustain this ground of appeal only in respect of the first finding complained of.

(ii) Taking into account irrelevant or immaterial considerations

[28] The irrelevant or immaterial matter complained of here is the SRDP scheme. It is noted at the second bullet point of the decision. It is referred to there as evidence showing that the grazings are presently being managed successfully. In our view it was relevant to that point and that point in turn was material to the decision the Commission had to make. The relevance was this: that, unlike many others, this was not a case in which the common grazings were not being used. Nor, again unlike many others, was it a case in which communal management of the grazings was moribund: the grazings were being communally and successfully managed by the shareholders. This ground of appeal is accordingly rejected.

(iii) Failure to take into account certain relevant or material considerations

[29] The matters said not to have been taken into account are (a) the foresaid SGRPID report, (b) the applicant’s purpose in requesting the apportionment, namely good stock management, and (c) the applicant’s willingness to reduce the area he was seeking to have apportioned.

[30] So far as the first of these is concerned, the applicant seems to read the SGRPID report as recommending the grant of the application. That is not how we read it. The function of such reports is to report on what granting the apportionment would involve, how feasible it would be, what practical problems might be thrown up, whose interests are affected and so on. That process may or may not result in a recommendation but whether to grant the application remains a matter for the Commission. In the present case we take the reference to “Area Recommended” to mean that, if granted, the apportionment should be restricted to 30 ha rather than the 30.75 originally applied for, this, presumably, reflecting the restriction agreed to by the applicant. But we do not think that amounts to a recommendation that the application be granted because we also note the statement at the foot of page 5 that “there is also a strong case that if shareholders wish to apply for apportionments they should consider firstly drawing a planned scheme i.e. agreeing the boundaries of the areas of the hill they consider apportionable and who gets what”. What that is saying is that there is a strong case for addressing that possibility first, before any further apportionments are granted.

[31] As to whether this report was taken into account, although no mention of it is made in the statement of reasons for the decision, examination of the Commission’s papers shows that it was. We refer to the Summary of Case document, production 13, and the Note of Decision containing the decision to propose to refuse the apportionment; production 14. These documents are in identical terms except for the appending of a decision to the latter. They disclose, at para 2.2, that a SGRPID report had been prepared and much of what follows appears to be based on that report. We refer, in particular, to the information contained in paras 3.3, 3.4, 3.6, 3.7 and 3.10, some of which is an almost verbatim reproduction from the SGRPID report.

[32] Additionally two facts have to be remembered. The first is that Mr Ratter, one of the quorum of Commissioners which decided to refuse the application, was present at the site meeting on which much of the SGRPID report was based. He was interested enough in what was at stake to attend. He was therefore well versed in the issues with which the report dealt. It does him an injustice to suggest that he ignored these issues when making the decision. The second fact is that Mr McIldowie gave evidence at the hearing on 16 March 2009 and his evidence was reported back to the Commission by Dr MacPhail. Also present at that meeting was Mary Ross, the Crofting Services Officer who seems to have been involved in the case throughout. Accordingly she too would have been well aware of these issues.

[33] The basis on which it is said that, notwithstanding the foregoing, the Commission did not in fact take the report into account is that no mention is made of it in the decision. We do not find that in the least surprising. Firstly the report was concerned only with providing the Commission with a factual context for their decision-making. Therefore there was no need to refer to it in the decision. Secondly there was nothing in it which was fundamentally at odds with the decision taken by the Commission. Had there been, the inconsistency might require to have been explained. But all the report, on a proper reading, did was tell the Commission that there was nothing by way of a fundamental or insurmountable difficulty with the application, while sounding a note of caution as to the rights of the other shareholders. The Commission’s decision is entirely consistent with that.

[34] So far as failure to take account of the applicant’s reason for seeking the apportionment is concerned, that purpose is referred to at the very outset, at para 1.1, of the note of decision to propose refusal, and explained in greater detail at paras 3.1 and 3.2. There is no indication that the Commission subsequently lost sight of that. Indeed they were reminded of it by the applicant’s evidence to the hearing of 16 March 2009, when he was given an opportunity of explaining his reasons for wanting the apportionment and his plans, including his management style, for it. His evidence on these matters is set out at paras 2.1 to 2.4 of production 19.

[35] At the end of the day what the Commission had to do was balance the applicant’s interests against those of the other shareholders. The court said quite a lot about the nature of that exercise in Mackenzie v Crofters Commission, Application RN/SLC/80/10 decision of 16 March 2011, a decision referred to by both sets of agents in their submissions. At para [34] we suggested that the Commission may be entitled to exercise a very broad discretion. That has not been challenged in this case and it remains our opinion.

[36] What weight to give the competing interests was, of course, a matter for the Commission themselves, as a body charged with the exercise of a discretion (see opinion of the Lord President in Pairc Crofters Ltd v The Scottish Ministers 2013 SLT 308, para [40]) but there is no basis for saying that the applicant’s plans were not taken into account. Indeed it is hardly believable that the Commission would ever fail to take account of the purpose for which an apportionment is sought, the purpose always being fundamental to the application.

[37] As to the applicant’s willingness to restrict the area sought, the Commission were well aware of it. It is referred to in the SGRPID report at para 15, in the Summary of Case at paras 3.7 and 3.11 and in the report of the meeting of 16 March at para 6.7. The reduction appears to have been from 30.75 ha to 30 ha; that being the “Area Recommended” in the SGRPID report. Accordingly it was not of the sort of size which fundamentally changed the nature of what was proposed: it was still proposed to remove a substantial area of the better land from the shared grazings. In those circumstances we consider that a fair reading of the situation is that the Commission knew about the applicant’s willingness to reduce the area sought but decided that it did not meet their fundamental concern as to good land being removed. It is true that this is not spelt out in their decision but it did not have to be: it is an obvious inference, given the limited size of the reduction. The reduction met concerns about environmental issues; it met Mr Thomson’s personal concerns about his planticrib; it met the concern about the northern boundary being too near the steep, hilly part of the grazings; but it did not meet the fundamental objection that a significant amount of good land was being removed from the grazings, leaving the other shareholders with a poorer resource on which to manage their stock.

[38] For the foregoing reasons this ground of appeal is repelled.

(iv) Exercise of discretion in an unreasonable manner

[39] The basis is on which this ground of appeal is advanced is that the Commission failed to take up the recommendations said to be contained in the SGRPID report and, having upheld the objections of the shareholders and Grazings Committee, took a contrary approach to the one taken in granting an apportionment to another shareholder, Mr Magnus Priest, in 1976.

[40] We have already dealt with the point as to whether the SGRPID report is to be seen as containing recommendations. Our conclusion was that there is no inconsistency between the SGRPID report and the decision arrived at by the Commission. Accordingly the Commission’s decision cannot be said to be unreasonable on that ground.

[41] As far as departing from the approach taken with Mr Priest’s application in 1976 is concerned, the Commission require to decide each application on its own facts and circumstances. That does not involve a licence to act capriciously or on a whim. Shareholders in common grazings are entitled to expect fair and broadly consistent treatment but that does not mean that if one shareholder gets an apportionment everyone else becomes entitled to one as well. Accordingly the Commission were not bound to grant this application simply because they had granted Mr Priest’s 37 years ago. They had to address the interests of all the shareholders as matters presently stand. That is what they did and we can find no fault in their approach in that regard.

[42] More generally, it does not seem possible to us to argue that the Commission exercised their discretion in an unreasonable manner in this case. The relevant test is what has become known as “Wednesbury unreasonableness”; a decision so unreasonable that no reasonable authority could ever have come to it, Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at p 230. In Mackenzie v Crofters Commission, (supra),we made the point that the legislation gives no guidance to the Commission as to what criteria they should apply when considering whether to grant an apportionment, nor to this court in terms of what test to apply when considering whether the Commission’s decision should be set aside. In this respect apportionment decisions are different from others which the Commission are required to make. Applications in relation to exchange, assignation, division, and re-letting of crofts are all applications for the approval or consent of the Commission to which sec 58A(7), listing the factors to which the Commission must have regard, applies and resumption and de-crofting have their own provisions as to the matters of which the Commission must be satisfied and the interests they are to take into account; secs 20 and 25 of the Act. No such guidance is available for apportionment applications under sec 52(4). The only requirement is that the Commission consult the grazings committee.

[43] In the present case the Clerk to the Heogs Common Grazings, Mr John Thomson, wrote to the Commission on 28 April 2008 raising matters of personal concern; production 4. In a further letter, dated 15 November 2008, Mr Thomson wrote not only on his own behalf but in his capacity as Clerk and on behalf of the four other shareholders; production 10. Although not using the word “object”, that letter is to be taken as intimating objections to the application on the grounds of the loss of better quality land and the need to treat all shareholders equally. At para [41] of our decision in Mackenzie, dealing with the assessment of objections to apportionment applications,the court said:-

“Although Parliament made provision requiring the Commission to consult the grazings committee, it made no provision of any other specific matters to be taken into consideration. However, the fact of objection from another shareholder seems to us to be a factor which the Commission had to consider. If they concluded that the objection was based on considerations wholly unrelated to land use or land value, it might have little or no weight but we are not yet persuaded that a simple objection from a person who would lose their rights in the land could be disregarded because it was not shown to be supported by sound reasons. It may be that it would be enough to say the shareholders should not lose rights without good cause.”

[44] In the present case the concerns raised by the objectors – the effect of the loss of better quality land and the need to treat all applicants equally – were perfectly cogent concerns. The Commission had to have regard for them.

[45] In their submissions the applicant’s agents seek to distinguish MacKenzie on the ground that the land proposed to be apportioned there was zoned for housing and, accordingly, had development value. In that context the court said, at para [38], “If an applicant is given land as an apportionment others will lose their rights in that land. Where the only relevant use in question is for grazing it may be sufficient compensation that the applicant will lose an equivalent share of grazing rights in the rest of the common grazings. But where the apportionment has a potential value different from other parts of the grazings, other issues arise.” That is a valid point of distinction between the present case and MacKenzie. In the present case we are concerned only with grazing value. And the applicant’s souming (for eight ponies) would have been extinguished had the apportionment been granted. But there was present here a wider concern as to whether the shareholders were being dealt with fairly in terms of division of the common grazings. Hence the SGRPID reference to there being a strong case for a planned scheme of apportionment. Here the Commission’s fourth ground of refusal is relevant: that the shareholders and Grazings Committee do not support the application. The basis on which they do not support the application is not only that they perceive disadvantage from the removal of a large proportion of the better grazings (which might be compensatable by the extinguishing of the applicant’s souming) but that they are anxious to ensure equality for all shareholders; production 10. Accordingly we have to assume that the Commission had this in mind when coming to their decision. This is not, therefore, a case in which concerns about the loss of good land are satisfactorily answered simply by the removal of the applicant’s souming.

[46] One final matter remains for consideration. That is whether the Commission, rather than refuse the application, should have proceeded with a scheme for division of the common grazings. The initiative for that would have to come from the shareholders themselves. The Commission have no power to impose such a scheme. In this case it seems unlikely that the rest of the shareholders would have wanted to divide the grazings, given that they had decided to pursue, jointly, a common Rural Priorities scheme of management. Even if they had been so minded in principle, it could take a long time to agree the division. In these circumstances we are satisfied that there was no obligation on the Commission to delay a decision on this application in order to investigate the possibility of an agreed apportionment scheme.

[47] For these reasons we consider that it cannot be said that the Commission exercised their discretion in an unreasonable manner. This ground of appeal is therefore refused.

Disposal

[48] The questions in the stated case are as follows:-

1. Did the Commission fail to take into account certain relevant or material considerations?

2. Did the Commission take into account certain irrelevant or immaterial considerations?

3. Did the Commission make a finding in fact material to the decision but did not have sufficient evidence on which to base that finding?

4. Did the Commission exercise their discretion unreasonably in their determination of the application?

[49] We answer questions 1, 2 and 4 in the negative. We answer question 3 in the affirmative so far as the first finding complained of is concerned and otherwise in the negative. Discounting the finding which has been successfully challenged, there remains an adequate basis for the Commission’s decision and it cannot be described as unreasonable. Accordingly the appeal has been refused and, in terms of sec 52A(4)(a) of the Act, we have confirmed the Commission’s decision.

Expenses

[50] We have invited written motions and submissions on expenses within 21 days of intimation of this decision. In that regard it may be relevant to say that the reasons contained in the Commission’s final decision were not as clearly expressed as they might have been. Indeed the fundamental reason for refusal – the removal of good quality land to the detriment of the other shareholders – is much more clearly expressed in the statement of reasons which accompanied the note of proposed refusal. It is not clear to us why the Commission felt obliged to re-cast these reasons whilst at the same time making clear (in their letter of 6 May 2009) that no new information had been presented to justify changing that decision. These considerations may have a bearing on the expenses of the appeal.