THE COURT

(Sheriff R J MacLeod, Mr A Macdonald)

MATHESON v CROFTING COMMISSION

(Application SLC 31/10 – Order of 22 August 2012)

CROFTS – CROFTING COMMISSION – APPEAL BY STATED CASE – REFUSAL OF APPLICATION FOR APPORTIONMENT – COMMON GRAZINGS – CROFTERS (SCOTLAND) ACT 1993 Secs 52(4), 52A.

A crofter appealed against a decision by the then Crofters Commission refusing her application for an apportionment from common grazings in which she was a shareholder. Of the six grounds of appeal contained in the Stated Case, four were argued at the hearing, based on the grounds in sec 52A(3)(b), (d), (e) and (f) of the 1993 Act. It was argued for the appellant that there was insufficient evidence to justify certain of the Commission’s findings in fact and she sought to introduce new evidence in the form of a specialist report. The Court followed the approach regarding the nature of the Commission’s discretion in apportionment applications, as set out in the case of Mackenzie v Crofters Commission 2011 SLCR 73.

Held (1) that it was not competent to introduce new evidence in appeals of this type; and (2) having considered each of the grounds in turn, while one finding in fact was found to be erroneous, it had not been relied upon in the Commission’s decision and could not be said to have been material to the decision. All other questions in the stated case having been answered in the negative, the Court refused the appeal.

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

[1] This is an appeal under sec 52A of the Crofters (Scotland) Act 1993 (the 1993 Act) by Mrs Joy Matheson, the tenant of croft 2 Erbusaig, Kyle of Lochalsh, against a decision of the Crofters Commission, as it then was, refusing her application for an apportionment of 37.248 ha from the Erbusaig Common Grazing. The date of that decision is not clear from the papers but it was intimated to parties on 20 January 2010.

Background

[2] The appellant’s croft extends to 3.593 ha and the appellant holds five of the sixteen shares in the said common grazing. Two areas have already been apportioned to the croft, an area of 0.125 ha as the site of a house and garden in July 1998 and an area of 52.96 ha for the grazing of cattle in August 2003. The appellant has a residual souming of ten cows and three sheep in the remainder of the common grazing. The appellant and her husband are active and progressive crofters. At the time of the Commission’s decision they had eleven cows/heifers. The appellant’s husband, Mr John Matheson, has a croft in the neighbouring township of Balmacara with an associated share in the Scalpaidh Common Grazing.

[3] As stated there are sixteen shares in the common grazing. These are held by seven shareholders. The Commission’s Note of Decision refers to there being only two active crofters in Erbusaig, the appellant (together with her husband) and Mr Alexander Beaton of 1 Erbusaig, but it has since emerged that there is now a third active shareholder, Mr Ian Ruari Finlayson who has no in-bye croft but keeps animals on the common grazing.

[4] The application for apportionment states as the reason for which the apportionment is required “Cattle management and to prevent poaching of existing ground”. The application was opposed by the owners of the common grazing, the National Trust for Scotland, and by a number of people in, or associated with, the locality. Of the latter, however, only three, said Mr Beaton, said Mr Finlayson and Mrs Laura Penny were considered to be competent objectors, inasmuch as only they are shareholders in the common grazing.

[5] As is the usual procedure the Commission obtained a report from the Scottish Government Rural Payments and Inspectorate Directorate (SGRPID) and that report provided much of the factual basis upon which the Commission relied in coming to its decision.

[6] The reasons for which the application was refused were, in terms of said Note of Decision, as follows:-

“The Commissioners consider that with the current stocking levels the Mathesons have, the extent of ground they already have should be sufficient for their cattle if managed more effectively.

The applicant has already been granted an apportionment of 52.96 ha and the approval of this application will exclude other shareholders from accessing a further 37.248 ha of good, easily accessible common grazing land and this may not be considered in the long-term interests of the Grazings. There are seven shareholders in the common grazings (including the applicant) and three of the shareholders, including the only other active shareholder, have objected to this application.

The Landlords do not support the application and are also concerned that there is a potential house site in the area applied for and it would be imprudent to include these scarce sites in the apportionment as they would no longer be available to other shareholders.”

[7] We heard the appeal at Edinburgh on 13 August 2012 when the appellant was represented by Mr Lewis Kennedy, advocate, the Commission by Miss Eilidh Ross, solicitor, and Mr Beaton by his wife, Mrs Alison Beaton.

The relevant law

[8] Section 52(4) of the 1993 Act, as it was before being amended by the Crofting Reform (Scotland) Act 2010, was as follows:-

“The Commission may, on the application of any crofter who holds a right in a common grazing, and after consultation with the grazings committee, apportion a part of the common grazing (including the site of the dwellinghouse of the crofter so applying if situated on the common grazing), other than a part on which the grazings committee have planted trees and which they are using as woodlands under section 48(4) of this Act, for the exclusive use of the applicant.”

[9] Section 52A(1) provides for an appeal to this Court on one or more of the grounds set out in subsection (3) against any decision, determination or direction of, or the imposition of a condition by, the Commission on an application made to them under the Act. Subsection 2(a) provided that such appeals were to be by way of stated case, a requirement which applies to the present case but which was removed by sec 50(1)(c) of the 2010 Act.

[10] The grounds set out in subsection (3) are that, in making their decision, the Commission:-

“(a) erred on a point of law,

(b) made a finding as to a fact material to the decision, determination, direction or imposition but did not have sufficient evidence on which to base that finding,

(c) acted contrary to natural justice,

(d) took into account certain irrelevant or immaterial considerations,

(e) failed to take into account certain relevant or material considerations,

(f) exercised their discretion in an unreasonable manner”

[11] It is important to realise that sec 58A(9) of the 1993 Act, which lays down general conditions to which the Commission are required to have regard in relation to certain applications for their approval or consent, and which specifies the various interests which they are to consider, does not apply to apportionment applications because these are not applications for approval or consent. There is no equivalent provision in respect of apportionment applications and the Commission are not given any guidance as to the interests they require to take into account in such applications.

The Grounds of Appeal

[12] The Stated Case contains six grounds of appeal but only four were argued. The second and fourth grounds (which involved alleged procedural unfairness on the part of the Commission) were not argued. Question 4 in the case, which relates to these grounds, therefore falls to be answered in the negative. The remaining grounds are as follows:-

(First) That the Commission had made material findings in fact without sufficient evidence; sec 52A(3)(b) of the 1993 Act;

(Third) That the Commission took into account certain irrelevant or immaterial considerations; sec 52A(3)(d) of the Act;

(Fifth) That the Commission failed to take into account certain relevant or material considerations; sec 52A(3)(e); and

(Sixth) That the Commission exercised their discretion in an unreasonable manner; sec 52A(3)(f).

The nature of the Commission’s discretion

[13] Before turning to consider these grounds of appeal, we remind ourselves, as did Mr Kennedy, of what the Court said about the nature of the Commission’s discretion in apportionment applications in the case of Mackenzie v Crofters Commission RN SLC/80/10, decision of 16 March 2011) and of the consequences of that for the role of this Court in appeals such as this. At paras [33] to [42], under the heading Some wider issues, the Court made a number of comments about the nature of apportionment and the nature of the Commission’s discretion in dealing with apportionment applications. The Court stressed that its comments (made in a case decided upon written submissions and without a hearing) did not represent a concluded view on these issues (para [42]) and, indeed, invited further submissions on them in later cases (para [33]). In the present case Mr Kennedy made no criticism of the approach of the Court in Mackenzie but rather accepted it as correct. He did, however, argue that it was distinguishable from the present case because in Mackenzie the appellant’s declared intention had been to fully exploit the area to be apportioned for development if that was likely to prove more rewarding than use for agricultural purposes. Here the appellant had no such intention.

[14] What the Court said in this section of its judgement in Mackenzie, in so far as relevant to the present case,can be summarised as follows: (i) there is no right to apportionment; (ii) the making of an application for apportionment does not confer upon the applicant any special right in any part of the grazings, (iii) likewise, the provision of an appeal mechanism does not necessarily create new substantive rights; (iv) the fact that the applicant would be expected to make good use of the land or that the applicant needs the land in order to run his croft efficiently or that the applicant would make better use of the land than any other shareholder does not confer any right to an apportionment on the applicant; (for all of which see paras [34] and [37] of the decision in Mackenzie),(v) the granting of an apportionment involves loss of rights on the part of the other shareholders, although that may be compensated for by a reduction in the applicant’s souming in respect of the remainder of the grazing (para [38]); (vi) for the foregoing reasons, the discretion to be exercised by the Commission may be a very broad one and of an administrative, rather than judicial, kind (paras [34] and 37); and (vii) the over-arching consideration may, therefore, be one of reasonableness – whether the Commission’s decision was reasonable – and such a conclusion would not necessarily be vitiated by, for example, some fact found by the Commission not being soundly based in evidence (para [36]).

[15] Since these matters were not challenged before us we propose to follow them in this decision but we would emphasise that further, including contrary, submissions on these matters will be welcome in future cases and that, just as in Mackenzie, no concluded view on them is being expressed. In particular the search for the criteria which the Commission ought positively to apply to apportionment applications, referred to in para [33] of Mackenzie, goes on.

First Ground of Appeal

[16] The findings sought to be impugned are findings-in-fact (i)(i), (i)(iii),(o), (p) and (q) listed in para 1.31 of the Stated Case. These are:-

(i)(i) That it would be possible to improve the management of the current apportionment (by) fencing internal boundaries to enable stock rotation throughout the current apportionment, thus allowing areas to rest and enable stock to remain on the apportionment for longer;

(i)(iii) That it would be possible to improve the management of the current apportionment (by) heather burning to reduce the mature heather growth;

(o) That the area in respect of which the apportionment is sought would block any access to the remainder of the common grazing;

(p) That there are alternative methods available to the applicant which would allow her to improve the management of the current apportionment;

(q) That the agricultural necessity for the apportionment founded upon by the applicant has not been demonstrated.

[17] Miss Ross took exception to the first of these on the ground that it had not been included in the requisition for a stated case. The Act contained no mechanism for the introduction of new grounds of appeal. Mr Kennedy relied on the dynamic nature of appeals by stated case: it was not always possible to know the facts upon which the respondents’ decision was based until those had been set out in the draft case. He also argued that this ground was a derivative of other grounds contained in the stated case. There was, therefore, no prejudice to the Commission in allowing this ground to be argued.

[18] We consider that Mr Kennedy is right in saying that this is a derivative of another ground. It is really part of finding-in-fact (p), the Commission’s finding that there were other alternative methods available to the applicant which would allow her to improve the management of her current apportionment, the particular management mechanism being specified in finding-in-fact (i)(i) being internal fencing. We therefore repel Miss Ross’s objection.

[19] The question then becomes whether there was sufficient evidence to justify the making of this finding. The evidence is contained in the SGRPID report, production 29. It is convenient at this stage to quote a lengthy passage from that report which discloses the problem of over-grazing and the Reporting Officer’s suggested solutions to it:-

“I inspected the current apportionment on 16/10/2009 to see levels of grazing and how it is currently managed. The portion of land extending to approximately 7 ha nearest to Erbusaig is very overgrazed and poached with little vegetation present. The remaining land is grazed by the cattle in spots but any wet land the cattle do not seem to stay on it preferring the heavier grazed drier land. There is no internal fencing so Mr Matheson is unable to keep the cattle off the overgrazed land. On the day of the inspection there were four heifers and a bull on the apportionment. Mr Matheson conceded that the apportionment would benefit from internal fencing.

Mr Matheson has only improved the current apportionment by fencing the external boundary of the apportionment. I would consider that Mr Matheson’s plans for the proposed apportionment on the whole would be able to be carried out on his current apportionment and croft land with a bit of planning. He would be able to improve the management of the current apportionment further by fencing internal boundaries enabling him to rotate his stock throughout the apportionment allowing areas to rest and enabling him to leave the stock on the apportionment for longer. Further improvements that could be considered would be to provide hard standings and/or shelter for the cattle thus reducing the grazing pressure on the inbye croft land. Heather burning areas would also reduce the mature heather growth and provide young growth, (but) the Mathesons are reluctant to do this. On raising these points with Mr Matheson he was of the opinion that if he did fence internally and burn the heather, there would not be much improvement on the quality of the grazing in the current apportionment and still thinks he requires the extra land. There is also the issue of the croft and common grazing share at Balmacara that Mr Matheson tenants as this is under utilised. I would consider that with the current stocking levels Mr Matheson has, the extent of ground he already maintains should be sufficient for their cattle if managed correctly.”

[20] That Mr Matheson disputes the validity of the Reporting Officer’s view as to the effect of internal fencing on the regeneration of grass is clear from the quotation. That was repeated in Mr Kennedy’s submission in support of this aspect of the appeal. Mr Kennedy’s position was – and this is repeated in relation to all of the challenges to findings-in-fact – that “Though there might well have been a technical sufficiency of evidence on which to base this finding, it is submitted that there was not sufficiently compelling evidence on which to base it. In any event, the Report was not entitled to determinative weight.” (Written submissions for the appellant, paras 33 and 34.)

[21] What that comes to, in our view, is that the Commission ought to have preferred Mr Matheson’s opinion to that of the Reporting Officer. We are unable to agree. We do not know what the Reporting Officer’s formal agricultural qualifications are but we assume she has some because she is a SGRPID official. She also has the advantage of being neutral in the matter: the Scottish Government is not the landlord. For what it is worth her opinion is endorsed by a counter-signing official, Mr Ian Park, who was involved in an earlier application to apportion substantially the same area of land. Mr Matheson, on the other hand, is an experienced and skilled crofter but, so far as we are aware, he has no formal qualifications and, in any event, he is not neutral. He may, nevertheless, well be right on the matters at issue in this case and Ms Cameron (the Reporting Officer) may well be wrong. But as matters appeared to the Commission there was no basis for choosing his opinion over Ms Cameron’s. Accordingly we are satisfied that there was not only technical sufficiency of evidence here but that it offered a sound basis for finding-in-fact (i)(i).

[22] So far as finding-in-fact (i)(iii) is concerned, it was, as has been seen from the quotation, also the Reporting Officer’s view that muirburn would be a means of improving management of the existing apportionment. Again Mr Kennedy accepted that this provided a technical sufficiency of evidence to support the Commission’s finding. But he said that the Commission were not entitled to found on it because of (i) the landlord’s opposition to it, (ii) the appellant’s opposition to it (for perfectly good, valid reasons) and (iii) the practical problems and risks associated with the practice of muirburn.

[23] Over and above these criticisms, Mr Kennedy made reference to new evidence, in the way of a report from a Mr Simon Jacyna, a Senior Forestry Consultant, dated 25 June 2012, which makes criticisms of the practice of muirburn and its efficacy in allowing stocking density to be increased significantly. He conceded that there was neither legislative provision nor authority by way of precedent for the introduction of new evidence in appeals such as this. But neither was there anything precluding it. It should be allowed in the same way as material new evidence which was not available at the time of the trial was allowed in criminal appeals. The reason it had not been available at the time of the Commission’s decision was that it was not customary for crofters to go to the expense of commissioning such reports at first instance. Miss Ross opposed reference to new evidence at this stage. It did not sit well with the existing statutory provisions which were all directed at examining how the Commission had gone about its duties. The Commission could not have regard to material not made available to it.

[24] We entirely understand why a report from Mr Jacyna was not commissioned at the outset. Quite apart from the expense it was not known until their decision was issued that the Commission would rely on muirburn as a management technique. Nevertheless, we are of opinion that it is not competent for us to entertain new evidence at this stage. This is a statutory appeal procedure. It contains nothing which allows us to do so. It contains nothing akin to the provisions of the Criminal Procedure (Scotland) Act 1995 which allows new evidence and specifies criteria for its admissibility. There is not the same prejudice to the appellant in the present situation as there is to an accused in criminal proceedings. If material new evidence is not allowed in a criminal appeal there may be no other means of correcting a miscarriage of justice. In the present case there is nothing to stop the appellant applying again for an apportionment, this time armed with Mr Jacyna’s report.

[25] Returning to the other challenges made to this finding-in-fact, it appears to be the case that the landlords are against the practice of muirburn and Mr and Mrs Matheson certainly are. It is, as Mr Kennedy submitted, a “controversial land management tool”. It is within the expert knowledge of this Court that its efficacy is doubted and that it carries risks, the most obvious being that fires can get out of control. But it is also within the expert knowledge of this Court that it is often practised for reasons of grazing regeneration and that there is a body of belief that it is efficacious for that purpose. It is no doubt because she shared that view that the Reporting Officer here (and her counter-signatory) felt able to recommend it. Although the landlords are opposed to it they are not in a position to forbid it on an apportionment which, by virtue of sec 3(4) of the 1993 Act, is to be deemed part of the croft and, therefore, tenanted: see sec 24(1) of the Hill Farming Act 1946. The appellant is opposed to it but that is a matter of personal choice. Objectively, the fact remains that muirburn was available to Mr and Mrs Matheson as a land management tool and that there was evidence before the Commission, in the SGRPID report, that it could be efficacious. Accordingly we do not consider that it can be said that there was insufficient evidence to support finding-in-fact (i)(iii) nor that the Commission were not entitled to rely on it.

[26] Miss Ross, however, accepted that finding-in-fact (o) (lack of access to the remainder of the common grazing) was wrong. The apportionment, if granted, would leave a 15 feet wide corridor of access to the rest of the grazing running along the west of the appellant’s home. Mrs Beaton made some criticism of the adequacy of that means of access but, in any event, the finding-in-fact cannot stand. It may be noted at this stage, however, that lack of access was not one of the Commission’s grounds for refusing the application. Accordingly the quashing of this finding-in-fact is not fatal to the Commission’s decision.

[27] So far as finding-in-fact (p) is concerned (that there were alternative methods of improving management of the current apportionment available to the appellant), this has largely been dealt with in our discussion of findings-in-fact (i)(i) and (i)(iii). Again Mr Kennedy sought to rely on Mr Jacyna’s report but we have already ruled on that.

[28] Mr Kennedy submitted that the proposed alternative methods “would not adequately address the appellant’s overgrazing problem” (written submissions, para 53). It is said that the existing apportionment of 52.96 ha is capable of supporting the appellant’s stock only during the summer months.

[29] Although this is not how the Commission approached the matter, the foregoing criticism prompts us to say this. The appellant ought not to have an over-grazing problem. It is the duty of crofters and farmers, in terms of statutory management cross compliance requirements under schemes such as the Single Farm Payment and the Less Favoured Area Support Scheme, not to stock land at levels which cause over-grazing. It does not seem to us that applicants for apportionments should be able to rely on a problem of their own making in order to obtain additional land. Progress and expansion, particularly where required just to achieve a sustainable level of operation, are to be admired and encouraged. The present appellant and her husband appear to be model crofters from that point of view and a wish to improve and expand their crofting operation is a perfectly good reason for applying for an apportionment but we are not persuaded that relieving the pressure of existing over-grazing is a consideration which should weigh heavily with the Commission.

[30] Under this ground of appeal the Commission’s finding that the Balmacara croft and associated grazing share was available to Mr and Mrs Matheson was challenged. That was because Mr Matheson does not feel able to use the grazings there for biosecurity reasons, one of the other users not being part of the disease notification health scheme. It was argued (para 66 of the written submissions) that this had led to a misunderstanding on the part of the Reporting Officer, and hence on the part of the Commission, as to the extent of the ground which the appellant and her husband had at their disposal and that this had led to the Commission misdirecting themselves as to the true factual position.

[31] What the Reporting Officer’s report says is this: “Mr Matheson runs this croft in conjunction with his croft at Balmacara and uses it for the grazing of weaned stock. He does not use his share of Scalpaidh common grazing because he does not want his stock mixing with other stock and risk of spread of disease. He also considers the Balmacara common grazing to be un-fenced but other shareholders state this is not the case.” Further on, and this has already been quoted, there is reference to “the issue of the croft and common grazing share at Balmacara that Mr Matheson tenants as this is under utilised”. None of that seems to us to contain any kind of misunderstanding on the part of the Reporting Officer. Instead it sets out the position, including Mr Matheson’s reasons for not using the Scalpaidh Common Grazing, accurately and fairly.

[32] What the Commission’s Note of Decision says is this:-

“Mrs Matheson’s husband John is the tenant of a croft at Balmacara extending to 3.7 ha with one share in Scalpaidh common grazing extending to 46.34 ha. (Mr Matheson does not use his share of Scalpaidh common grazing because he does not want his stock mixing with other stock and risk of spread of disease. He also considers the Balmacara common grazing to be un-fenced, although this is disputed by shareholders.)”

It is then noted that the two crofts are run as a unit, with the Balmacara croft being used for weaned stock, and, later, that “There is also the issue of the croft and common grazing share at Balmacara that Mr Matheson tenants as this is under utilised.”

Again that seems to us not to contain any factual error, misunderstanding of the position or omission.

[33] The appellant’s real objection is that the Reporting Officer and the Commission have not adopted Mr Matheson’s own view that, in reality, the Scalpaidh Common Grazing is not available to him because he, reasonably, refuses to use it for biosecurity reasons. In our view the Commission were not bound to restrict their consideration of matters in that way. Mr Matheson chooses not to use the Scalpaidh grazings for good reasons. But the grazings are available to him and plenty of other crofters in need of grazing land would use them. (Despite the factually disputed issue of whether the grazings are fenced, it is agreed that at least one other crofter has used these grazings until recently.) In that situation the Commission were entitled to make the finding-in-fact complained of. We also consider – and there was no challenge to this – that the Commission were entitled to look at the Balmacara position although Mr Matheson, rather than Mrs Matheson, is the tenant there, because the two crofts are run together. (It should be noted, for completeness, that again Mr Jacyna’s report was sought to be prayed in aid and our previous ruling applies.)

[34] Finding-in-fact (q) states that “the agricultural necessity for the apportionment founded upon by the Applicant has not been demonstrated”.

[35] This comes down to the Reporting Officer coming to a different conclusion from the appellant and her husband. In the absence of apparent error in the Reporting Officer’s approach and understanding of the situation, the Commission were entitled, for the reasons already given, to prefer the conclusion arrived at by the Reporting Officer. We have already held that the Reporting Officer and the Commission were entitled to take account of the various strategies for managing the present apportionment discussed above and of the availability of the Balmacara croft and grazings. The Reporting Officer’s conclusion, based on these considerations, was that the additional apportionment was not necessary. That provided a sufficient evidential basis for the making of this finding-in-fact.

Third Ground of Appeal

[36] This ground of appeal is that account was taken of certain irrelevant and immaterial considerations; sec 52A(3)(d). What is argued under this head is that the Commission “placed too much weight on the speculative prospect of future housing development at a very particular part of the proposed apportionment”; written submissions, para 70. It is said that the Commission erred “in prioritising the rather uncertain possibility of future housing development at this particular site in preference to (current) agricultural use”.

[37] The relevant part of the proposed apportionment is, we understand, zoned for housing in planning terms. The appellant has no intention of developing that area for housing. She has other plans for it in the way of creating a separate, sheltered grass park for the better management of her stock and plans to build an agricultural shed or outhouse on it. Potential for housebuilding is, according to the appellant, limited to one house and, even at that, severely limited by practical factors such as the existence of overheard electricity cables, proneness to flooding and the proximity, to the north, of an extremely unstable rock face. There is, according to the appellant, no current interest in building on this site nor has there been historically. Mr Beaton avers, however, that a Mrs Cara Stewart has expressed interest in this area as no other common grazing land is zoned for housing. It does not appear, however, that there is any imminent prospect of housebuilding on this site. In these circumstances, the appellant argues, there is only minimal “hope value” attached to this area and there is little prospect of other shareholders losing any meaningful right to share in development value in the event of apportionment.

[38] The possibility of other shareholders losing the right to share in development value where there is an apportionment of land suitable for housing was an issue in Mackenzie, as Mr Kennedy helpfully reminded us. There the Court made what it referred to as two preliminary points, as follows:-

“[16] First it is within the expert knowledge of this Court that when agricultural land is zoned as available for housing development it usually acquires a ‘hope value’ which is above agricultural value. Such hope value may, or may not, be greatly in excess of agricultural value. Many factors have to be considered before the hope value can be quantified but there is no real room for doubt as to its existence and we are satisfied that the Commission properly had that in mind.

[17] Second, there is no inherent reason why the Commission should not take the view that use for residential purposes should have priority over use for agricultural purposes. This will always be a question of circumstances but it is a view consistent with the policy implicit in the list of reasonable purposes accepted by Parliament in the context of resumption and set out in section 20(3)(a)(i) [of the 1993 Act]. The Commission would have been correct to take the view that if the owner sought to resume for housing, permission would probably have been given – although at that stage the competing interests of agriculture would have to be assessed.”

Turning to what the Commission had found in that case it went on:-

“[19] The substantive conclusion was that one shareholder should not be put in a position to gain a benefit from development at the expense of others. This is not an assessment which turns on the applicant’s intention. She may well have an intention of using the land for her agricultural business. But the present position is that although the shareholders’ rights are, strictly just rights over the land, the effect of section 21 is that the land is effectively held in common by the grazing shareholders. They have a right in common to share in development value. They would lose that if there was an apportionment.”

[39] As we have said, Mr Kennedy sought to distinguish Mackenzie on the basis that in that case the applicant had declared her intention to fully exploit the land for development if that was likely to prove more rewarding that use for agricultural purposes. That was not the position here.

[40] It seems clear to us from these passages, however, that it is neither the level of the ‘hope value’ nor the intention of the parties which makes the existence of the potential for housing development a relevant consideration here. What matters is that ‘hope value’ exists; that a prospect of development exists. How imminent or remote that prospect may be and how great or minimal the development value may be may affect the weight to be given to this consideration but the fact that there is a right to share which the other shareholders will lose if apportionment is granted makes the existence of a potential for housing development a relevant consideration.

[41] As to whether the Commission gave too much weight to this consideration and were prioritising such development over agricultural use in the present case, Miss Ross submitted that “the Commission refusing an apportionment on the basis, inter alia, that there is a potential for housing development there in the future, is not the same as the Commission supporting housing development in principle. Rather, it indicates a reluctance to prioritise one shareholder over the other shareholders in the event that development does take place.” (Written submissions for the Commission, para 8, original emphasis.)That reluctance is entirely appropriate in light of what was said in Mackenzie. It can never operate as a veto on apportionment, regardless of the circumstances of a particular case, but it will always be a relevant consideration.

[42] On a fair reading of their Note of Decision it cannot be said that the Commission attached undue weight to this consideration; indeed it features much less in the decision than do the agricultural considerations. It cannot therefore be said that in taking account of the existence of the potential for housing as they did the Commission took into account an irrelevant or immaterial consideration.

[43] It is also said under this ground of appeal (paras 83-85 of written submissions) that the Commission erred in taking account of the planning status of this part of the proposed apportionment in terms of zoning on the Local Plan. This, it is said, was an irrelevant and immaterial consideration given the practical limitations for future housing development. This point has really been covered in what we have already said. In our view the Commission was entitled, indeed arguably bound, to have regard to the planning status of the land to be apportioned. It is said that zoning should never act to prevent any apportionment taking place on agricultural grounds. This Court is very well aware of the concern which there is in the crofting community about the use of agricultural land, sometimes good agricultural land, for housing. But the suitability of land for housing is something of which the Commission, in dealing with an application for apportionment, require to take account in the public interest as well as in the interests of other shareholders who might stand to lose their share in the development value of the land. Communities have to be housed. Most of the houses in crofting communities are, almost by definition, built on crofting land. The present appellant’s own home is built on land apportioned for that purpose from common grazing. And, as the Court pointed out in Mackenzie, the building of dwellings is a “reasonable purpose” for which land can be resumed from crofting in terms of sec 20(3)(a)(i) of the 1993 Act; see Mackenzie at para [17].

[44] It is also said under this head (para 86 of the written submissions) that the Commission took into account irrelevant considerations in so far as they proceeded on the basis of a misconceived finding that the area to be apportioned would block any access to the common grazing. As we have said, the Commission have conceded that the finding-in-fact to that effect cannot stand. However Miss Ross submitted that in coming to their decision the Commission had not in fact relied on this finding to any extent. This appears to be correct. The Note of Decision refers to the matter of access in a number of places. First, in the “Summary” section it says that the application was a resubmission of an application made in 2007 “with a slight variation in the area; it does not now include access to the common grazing to the West of the Mathesons’ house”. This is not as clearly expressed as it might be but it appears that the 2007 application included the 15’ wide strip of land via which access to the rest of the common grazing is preserved in the present application. The Note of Decision also notes complaints relating to access to the rest of the common grazing among the objections of Mr Alex Beaton and Mrs Laura Penny but in each case the appellant’s rebuttal of these objections is also recorded. So it appears that, notwithstanding finding-in-fact (o), the Commission were in possession of accurate information on this aspect of matters when they came to their decision. The decision section of said Note itself makes no mention of any problem with access to the rest of the common grazing and it therefore appears that they did not rely on any such misconception.

[45] The next matter raised under this ground of appeal is the opposition to the application of the National Trust for Scotland, as landlords. It is nevertheless conceded that the fact of their objection was something which the Commission had to consider; written submissions para 89. What is complained of is any reliance on that opposition. That is because (written submissions para 91) the National Trust’s starting point was “virtually blanket opposition to apportionments”, without any attempt to balance the interests of the appellant against those of other shareholders. Although this is not how Mr Kennedy put it, we think the thrust of this is that no weight should be attached to the Trust’s other comments – such as their observation that the total area already possessed ought to be large enough for the appellant’s stock – on the ground that the Trust was never going to say anything in favour of apportionment anyway. The point is also made (written submissions, para 92) that the Trust’s observation that the land already possessed ought to be large enough for the appellant’s stock “most of the time” is beside the point: that what matters is whether the land possessed is enough for the needs of the appellant’s stock all of the time.

[46] These criticisms do not accurately reflect the National Trust’s position as it is recorded in the Commission’s Note of Decision. We accept that Mr Kennedy talked only of “virtual blanket opposition”, as opposed to “blanket opposition”, to apportionments. But the way it is put in the Note of Decision is that “The Trust is opposed to apportionments in principle unless there is a good management reason and no alternative solution”. Applying that policy must involve the Trust in a case by case approach to see whether there are good management reasons and no alternative solutions. And that is what the Trust appears to have done in this case because they went on to make representations as to other solutions.

[47] The way in which the Commission treated the Trust’s position in its Note of Decision was this:- “The Landlords do not support the application and are also concerned that there is a potential house site in the area applied for and it would be imprudent to include these scarce sites in the apportionment as they would no longer be available to other shareholders.”

[48] The land owner’s failure to support an application for apportionment in and of itself should carry little, if any, weight with the Commission. The landowner does not require to consent to an apportionment and is not a person whom the Commission is obliged to consult in deciding whether to grant an application for apportionment. What matters is any reason given for failing to support the application. In the present case the Commission appears to have given weight to the Trust’s concern about the possible loss of scarce housing sites. That was, as we have already decided, a relevant and material matter for the Commission to consider. In so far as the Trust’s objection also relied upon alternative methods of land management being available, the Commission does not appear to have relied on the Trust’s position in that regard. In that regard what it appears to have relied upon is the opinion of the Reporting Officer who was the appropriate person to opine reliably on these matters.

[49] The submissions in support of the appeal also say (at para 93) that “it must be apprehended that the Commission’s decision-making has been compromised by undue deference … to the NTS”. We do not see that there is any substance in that criticism. The fact that the Commission seem to have preferred the view of the Reporting Officer to that of the Trust on the availability of muirburn as an alternative land management technique does not suggest such undue deference but the exercise of a proper discernment in the analysis of the competing submissions before it.

Fifth Ground of Appeal

[50] This ground of appeal involves failure to take account of relevant or material considerations; sec 52A(3)(e).

[51] It is said that the Commission failed to take proper account of the immediate agricultural needs of the appellant. Although they purported to do so it was done in a superficial way; written submissions para 101. It is also said that the Commission erroneously proceeded on the basis that the extent of the ground the appellant and her husband had at their disposal ought to have been sufficient the number of stock they have, whereas the issue, properly, was whether it was sufficient. It is said that the Commission was wrong to find that the Balmacara land could be used in conjunction with the Erbusaig croft.

[52] In reaching their conclusion the Commission relied heavily on the Reporting Officer’s report. Under this ground of appeal that report is criticised as containing “incomplete and partial findings”, specifically the finding that the Balmacara land could be used in conjunction to the Erbusaig croft. That particular finding on the part of the Reporting Officer is criticised as having been made without the benefit of a site inspection or conducting any enquiry as to the site’s biosecurity deficiencies.

[53] It is not clear to us what the Reporting Officer would have gained from an inspection of the Balmacara common grazing nor what investigations she ought to have carried out into biosecurity there. The Reporting Officer took Mr Matheson at his word. She accepted that he was not using the Balmacara common grazing because of biosecurity concerns; see the first paragraph of the “Additional Information” part of her report. It is difficult to see what further enquiries on her part would have yielded anything advantageous to Mr and Mrs Matheson or, putting that another way, what prejudice has been caused to them by these alleged failures on Ms Cameron’s part. Accordingly we do not consider that the Commission’s reliance on the Reporting Officer’s findings is undermined by any failing on the Reporting Officer’s part. In our view there was no such failing.

[54] The Reporting Officer’s report contains a full statement of the reasons for which this apportionment was being sought. Mr Kennedy did not complain that anything had been left out. That statement is substantially replicated, at some points verbatim, in the Commission’s Note of Decision. It does not therefore appear that there was any part of the appellant’s case for an apportionment which was not taken into account.

[55] All of that material having been taken into consideration, it was the Reporting Officer’s opinion that Mr and Mrs Matheson’s current level of stock ought to be adequately accommodated on their existing land. As already explained Ms Cameron was the person best placed to make that assessment. No fault in her data or in her analysis of it has been identified. Her conclusion that the extent of land Mr and Mrs Matheson already have should be sufficient (as it is actually put, rather than ought to be sufficient), rather than is sufficient to maintain existing stock, is expressed in that way because it is dependant on the adoption of the land management practices which she recommends. No contrary expert advice was before the Commission. In those circumstances the Commission were entitled to rely on Ms Cameron’s opinion.

[56] In so far as the appeal lays stress on the immediate agricultural needs of the appellant we would refer to what we have already said to the effect that land should not be stocked beyond its capacity and that if that happens it should not be used as a means of bringing pressure to bear on the Commission to grant an apportionment. It is, of course, a relevant matter for the Commission to consider – and here they did so – but it is certainly not a matter to which the Commission are obliged to give determinative weight.

[57] This ground of appeal is refused.

Sixth Ground of Appeal

[58] This is the ground that the Commission’s exercised their discretion in an unreasonable manner; sec 52A(3)(f).

[59] Mr Kennedy accepted, following Mackenzie,that the test here is ‘Wednesbury unreasonable’ (from Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223). For this ground to succeed the Commission would have had to have exercised their discretion in an unreasonable manner. The Court in Mackenzie said that a test based simply on the proposition that no reasonable authority could possibly have reached the decision in question may seldom be required but referred to the need for reference to a concept of overall reasonableness; para [36].

[60] It will be rare that a decision satisfies the individual requirements which are part of Wednesbury reasonableness – and which in this context are largely reflected in the terms of sec 52A(3) of the 1993 Act – and yet the result, or the exercise of discretion leading to the result, is unreasonable. Rather things work the other way. There may be failings in one or more of the individual requirements and yet the decision may still be reasonable. As the Court said in Mackenzie “a decision which may have included reference to some fact not soundly based in evidence might still be a reasonable decision”; para [36].

[61] Under this head Mr Kennedy submitted that although the Commission may have a broad discretion it was not an unlimited discretion. It was not entirely unfettered. It had to be exercised reasonably. What was said to be unreasonable about how the Commission exercised their discretion was that they failed to consider wider issues than the matter of land use, highly important although that was, and failed to take adequate account of the interests of the township; written submissions para 104. Too much weight had been attached to the views of non-active absentee tenants; para 105. Active resident crofters were entitled to greater consideration than non-active absentee ones; para 111. In the particular circumstances of this case greater weight should have been given to the need to revitalise crofting and create a sustainable crofting community, thus serving the true interests of the township; para 113. Some criticism was also made of the reliance on the National Trust’s views and the weight attached to the possibility of housing development, but we have already dealt with these matters. Overall and objectively, it was said, the Commission’s decision was so unreasonable that it must be set aside; para 115.

[62] It is true that in their Note of Decision the Commission make no attempt to assess how the township’s interests would be affected by the granting of the apportionment. They are not statutorily obliged to do so but if there were to be an impact on the township one would expect to see it being taken into account. The interests of the other shareholders in the grazings have, of course, been taken into account but not any wider consideration of township benefit.

[63] Having applied our own minds to the situation, however, it does not seem to us that township benefit vis a vis an apportionment application is easy to discern or measure. We can see that facilitating a sustainable future for a crofting family is to the good of a crofting community. But where that is done by the allocation of a substantial area of common grazing to the exclusive use of one crofter and it thus being lost to communal use any resulting advantage to a township is not so obvious. In the present case Mr Beaton and Mr Finlayson, the other two active crofters in Erbusaig, would certainly require some persuasion that it was in their best interests, even allowing for the concomitant reduction in the appellant’s residual souming in the rest of the common grazing. We gave Mr Kennedy the opportunity of elaborating on this point but he was not able to point to any tangible township benefit save the fact that the crofting operation of one township family would be made more sustainable. Accordingly we cannot see that the Commission’s exercise of their discretion is rendered unreasonable by failure to take into account something which is so difficult to discern.

[64] The submissions we have referred to under this head express a frustration which is often present when apportionment applications are refused. There can be a perception that active and progressive crofters are being frustrated and thwarted by other shareholders who are, or who are perceived by the applicant to be, less so. Mr Kennedy argued that in such circumstances the Commission should have given greater weight to the needs of the active and progressive crofter. But the Commission had a balancing act to carry out. It had to take account of the interests of the other shareholders. And it had to consider the future. Except where an apportionment is granted temporarily, the land is lost to communal use in perpetuity. As the Commission themselves put it in the Note of Decision (final page, second paragraph) “When considering applications for apportionment, as well as taking the aspirations of the applicant into account, the Commission must also safeguard the present and future interests of the other shareholders.” That is an accurate statement of the task they had to perform. They had to balance those interests. There is no legal requirement to give one set of interests greater weight than the others. In carrying out the required balancing exercise it seems to us that there was nothing done which was unreasonable or led to an unreasonable result. Immediately after the sentence just quoted the Commission’s Note of Decision says this: “The applicant has already been granted an apportionment of 52.96 ha and the approval of this application will exclude other shareholders from accessing a further 37.248 ha of good, easily accessible common grazing land. It may not be considered in the long-term interests of the Grazings for the area applied for to be granted.” That, when taken together with all the other information upon which their decision was based, seems to us to be a conclusion which cannot possibly be said to be so unreasonable that it cannot stand. On the contrary, it seems to us that on the whole information available to them the Commission’s decision was the only one at which it could reasonably have arrived. Accordingly this ground of appeal is rejected.

[65] That deals with all the grounds of appeal. The questions stated for our opinion are as follows:-

1. Did the Crofters Commission make a finding as to a fact material to the decision upon which they did not have sufficient evidence on which to base that finding? In particular, did the Commission make the following findings in fact erroneously:-

(i) That the area which the Appellant sought to apportion would block access to the common grazings;

(ii) That there were alternative methods available to the Appellant which would allow her to improve the management of her existing apportionment;

(iii) That the practice of muirburn was a relevant potential solution to the Appellant’s problem of over grazing.

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

3. Did the Commission err in its analysis of the possibility of future housing development on the area which the Appellant sought to apportion?

4. Was the Appellant treated unfairly by the Commission in its processing of the application?

5. Did the Commission fail to take into account the agricultural practices and needs of Mrs Matheson? If the Commission did take Mrs Matheson’s needs into account, did the Commission misjudge the same?

6. Did the Commission exercise its discretion in an unreasonable manner?

7. Did the Commission incorrectly balance the interests of the Appellant against the wider interests, specifically in relation to the interests of the other shareholders and their rights to share in any future development value of the grazings, and the interests of the landlord of the croft, the NTS?

Question 1(i) is answered in the affirmative in that the finding to which it relates was made erroneously. However it was not relied upon in the Commission’s decision and cannot therefore be said to have been material to the decision. Quoad ultra we answer the foregoing questions in the negative. The appeal is therefore refused.

The alternative possibility of a conditional grant

[66] Mr Kennedy’s submissions contained an esto position. He suggested that the Commission could have dealt with the prospect of housing on part of the apportionment by way of a conditional or time-limited grant of apportionment. He suggested that we might remit to the Commission to consider this under sec 52A of the 1993 Act. We doubt whether we could do that when no basis has been established for setting aside the Commission’s present decision, although the possibility was considered in Mackenzie. In any event, however, the prospect of housing development was not the only basis upon which this application for apportionment was refused and in these circumstances we consider that a remit, if competent, would be inappropriate.

Postscript

[67] We would like to comment on two matters before concluding.

[68] Firstly, the situation which has given rise to this appeal might be thought to be an example of a problem to which apportionment can sometimes be a solution: the problem of a crofting community in deadlock. We hope that point has not, in fact, been reached in Erbusaig. Contrary to the information which was before the Commission when they decided this application, it now appears that there is a Grazings Committee in place in the township. Indeed is appears that Mr Matheson is Chairman of it. But it has never met. Of course, having a Grazing Committee in place, in the sense of one having been elected, is one thing, but having a Grazing Committee which is capable of functioning is quite another. We were assured by Mrs Beaton that there was no reason why this Committee could not function: there are, apparently, other people on it over and above the parties most at odds in this case. One recommendation in the Reporting Officer’s report is that fencing the entire common grazing at a township level would be a sensible idea but Ms Cameron goes on to say that it is unlikely to happen “as there is no grazing committee and there are existing differences between shareholders”. We would hope that some progress can now be made towards improving the common grazing as a whole so that it can be safely utilised by the shareholders.

[69] Secondly, although he has not been successful in this appeal, we would like to thank Mr Kennedy for the fullness and clarity with which his submissions were set out, both in writing and orally. That fullness and clarity has been of great assistance to the court.

Expenses

[70] Following our usual practice, we have invited written motions and submissions on the expenses of the appeal within 21 days.