DIVISIONAL COURT

(Sheriff R J MacLeod)

CROFTERS COMMISSION v SOUTH UIST ESTATES & OTHERS

(Application RN SLC 190/11 – Order of 29 February 2012)

CROFTING – CROFTERS COMMISSION – APPEAL AGAINST A DECISION OF THE CROFTERS COMMISSION – COMPETENCE – Sec 52A CROFTERS (SCOTLAND) ACT 1993

Due to administrative errors in the processing of an application to assign a croft tenancy, the Commission granted its consent to the application without properly intimating it to the landlord. The Commission then sought to have the decision quashed by appealing to the Land Court under sec 52A of the Crofters (Scotland) Act 1993. HELD that it was incompetent for the Commission to appeal against one of its own decisions.

The Note appended to the Court’s order is as follows:

[1] The facts of this unusual application are as follows.

[2] On 6 September 2011 MacDonald Maciver & Co Ltd., solicitors, Stornoway, lodged an application with the Crofters Commission seeking the Commission’s consent to the assignation of the tenancy of croft 4, 5, 6 & 7 Baghartavagh, South Uist. The application was on behalf of the then tenant of the croft, Miss Catherine MacInnes, and the intended assignee was Mr Iain Peteranna of 46 Stewart Drive, Stornoway, Isle of Lewis.

[2] On 19 September 2011 Mr Ian Maciver of MacDonald Maciver telephoned the Commission and left a message saying that his client intended to withdraw the application and that he would confirm that in writing. On the same date the Commission received a letter from Mr Maciver, dated 16 September 2011, stating “we have had instructions from Mrs Macinnes (sic)to withdraw the application and therefore please return the application papers to us and confirm that the processing of the application has been cancelled.”

[3] The following day, 20th September 2011, Mr Maciver telephoned the Commission again and said that the application may be proceeding after all. Another application which Miss MacInnes had pending, relating to the assignation of croft 470 South Lochboisdale, was, he said, being withdrawn. Mr Maciver said that he was awaiting confirmation of these instructions form his client and would get back to the Commission.

[4] At some point in the foregoing narrative, the date of which has not been supplied, the Commission notified the landlords of the croft, Storas Uibhist, orally that the application was being withdrawn.

[5] On 20 October 2011, nothing having been heard from him in the meantime, a member of the Commission’s staff phoned Mr Maciver, who confirmed that the application was to continue.

[6] No objections to the application having been received, the application was then immediately processed, and was granted the following day. Intimation of the granting of the application was made to all relevant parties on 21 October 2011. The landlords had not in the meantime been told that the application had been reactivated.

[7] The Commission now seeks to have that decision quashed. It does so by way of appeal to this Court under sec 52A of the Crofters (Scotland) Act 1993 as amended (“the 1993 Act”).

[8] It does so because of two errors in the way the application was processed.

[9] Firstly it is said that the application ought not to have proceeded once withdrawn. Once withdrawn a fresh application should have been insisted upon and the original application should not subsequently have been resurrected.

[10] Secondly, the application was mis-categorised. It had not been noticed that this was a case in which the proposed assignee was ordinarily resident more than 32 kilometres from the croft. That is what is said in the application. It is presumably a reference to the requirement that a crofter be ordinarily resident within that distance of the croft contained in sec 33 of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”). We observe from production 8, the Commission’s “Case Paper” for the application, however, that the reference there is to the 16 km requirement contained in sec 8(2) of the Crofting Reform etc. Act 2007, contravention of which confers upon the Commission a discretion to refuse an application for assignation.

[11] Having noticed these errors, the Commission brought this application. Being doubtful of its competency, however, the Commission wrote to South Uist Estates (Storas Uibhist by another name) on 22 November 2011 suggesting that they, as landlords, should appeal. By letter to the Court dated 31 December 2011 South Uist Estates declined to do so, saying “we do not consider it appropriate to appeal the decision of the Crofters Commission in this case as the errors in approving the assignation have been acknowledged by the Commission … and it is therefore appropriate for [the] Crofters Commission to seek to reverse the approval in their role as guardian of the public interest in relation to crofting”. The same letter makes plain, however, that they support the Commission in this appeal.

[12] Unsurprisingly, MacDonald Maciver & Co, who act for Mr Peteranna as well as for Miss MacInnes, have challenged the competency of the appeal, saying that there is no precedent for a body appealing one of its own decisions.

[13] By our order and note of 1 February 2012 we invited the Commission to make further submissions in support of the competency of the appeal. By email of 22 February they declined.

Decision

[14] Sec 52A of the Crofters (Scotland) Act 1993 governs appeals from the Commission to the Court. Sec 52A(1)(a) provides that an appeal lies to the Court against any “decision, determination or direction” of the Commission on an application made to them under that Act. Sub-sec (2)(a) provides that such an appeal “is to be made by way of stated case, at the instance of the applicant or any other person with an interest in the application”. The requirement for stated case procedure was removed by sec 50 of the 2010 Act with effect from 1 February 2011.

[15] We have considered whether it is possible to regard the Commission as a “person having an interest in the application”. We have no difficulty with the notion of regarding the Commission as a “person” – it has a legal persona. We can also accept that the Commission has an interest in the application in that it has a statutory role to perform in relation to it. However that would be true of any decision-making body and no precedent has been cited for such a body being able to appeal its own decisions. It seems to us, therefore, that the wording of sec 52A(2)(a) cannot be read as introducing such a novel procedure. Accordingly we consider the appeal to be incompetent and we have dismissed it.

[16] We do so with a certain amount of regret. There is, obviously, a public interest in the Commission performing its functions properly. But we have no general supervisory jurisdiction which would allow us to reduce a decision of the Commission.

[17] We would observe, however, that all is not lost because the assignee will, of course, be subject to the same residency requirements as apply to any other crofter from time to time.