DIVISIONAL COURT

(Sheriff R J MacLeod)

STEWART & OTHERS v CROFTERS COMMISSION

(Application RN SLC 40/11 – Order of 31 October 2011)

CROFTING – CROFTERS COMMISSION – APPEAL AGAINST A DECISION OF THE CROFTERS COMMISSION – TITLE and INTEREST TO APPEAL – CROFTERS (SCOTLAND) ACT 1993 SEC 52A, 58A and 61 – definition of “CROFTING COMMUNITY”

Nine individuals, of whom only two were crofters, sought to appeal against a decision of the Crofters Commission consenting to the assignation of a croft tenancy. Only five of the individuals had lodged objections following public notification of the application by the Commission. A preliminary question was raised as to whether eight of the nine individuals were entitled to appeal against the Commission’s decision. HELD that a person who was not a competent objector to the application to the Commission in terms of sec 58A did not have title or interest to appeal to the Court against the Commission’s decision.

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”) against a decision of the Crofters Commission dated 20 January 2011 approving the assignation of the croft tenancy of 4 Fearnamore, Applecross, by Mr Donald Johnston to his brother William.

[2] There are nine appellants. Of these only two, Dr Mark Stewart and Mr Alister Waterston, are crofters and only five, Ms Outhwaite, Mr Hills, Mr and Mrs Sinclair and said Dr Stewart, were objectors in the course of proceedings before the Commission. In these circumstances questions have arisen as to whether anyone other than Dr Stewart is a competent appellant. These questions are (a) whether anyone other than a crofter or the owner of land subject to crofting tenure was entitled to challenge a decision of this kind by the Commission under secs 58A and 52A of the 1993 Act as they stood at the time of the decision appealed against and (b) whether persons who were not objectors before the Commission, in terms of sec 58A, can nevertheless challenge the Commission’s decision by way of appeal under sec 52A. Following our Order and Note of 28 June 2011 answers to these questions have been lodged on behalf of the various parties and all have agreed that we should dispose of these questions on the basis of parties’ written submissions.

[3] The township of Fearnamore (otherwise “Fearnmore”) comprises eight crofts. There are no resident crofters, some of the crofting tenants living well away from the area but others living relatively locally. Seven of the nine appellants, however, live in Fearnamore or at least have residences there, in houses occupying decrofted and feued sites. The township has been the subject of a proposed re-casting scheme for many years but the scheme has never been implemented for want of unanimity among the crofters. We understand that all of the houses occupied by those of the appellants who live in Fearnamore are surrounded by land which would be part of croft 4 should the present re-casting scheme be implemented. There is, therefore, a very real “interface”, as the appellants call it in their pleadings, between these dwellings and proposed croft number 4.

The relevant statutory provisions

[4] We begin by setting out the relevant statutory provisions as they were at the date on which the Commission made the decision appealed against.

[5] The statutory provision governing the assignation of a croft tenancy was then sec 8 of the 1993 Act as amended by sec 12 of the Crofting Reform etc. Act 2007 (“the 2007 Act”). For present purposes it is sufficient to note that it prohibited the assignation of a croft without the consent of the Commission and provided that any purported assignation without such consent was to be null and void.

[6] Sec 58A contained provisions as to how any requirement under the Act to obtain the approval or consent of the Commission was to be complied with.

[7] Subsec (3)(a) required the person making the application to give public notification of it. In terms of sec 55A public notification meant notice in appropriate form in one or more newspapers circulating in the relevant district.

[8] Sec 58A(4) set out categories of persons who were to be allowed to object to the application and the time limit for objections. It was as follows:-

Within 28 days after public notification of an application made in compliance with subsection (2) above –

(a) the landlord (or where the land to which the application relates is, or is part of, a common grazing, the owner);

(b) any member of the crofting community in the locality of that land (including, where that land is, or is part of, a common grazing, the grazings committee or any crofter who shares in the grazing); or

(c) any other person if he is identified for the purposes of this subsection by the provision which imposes the requirement mentioned in subjection (1) above,

may submit to the Commission an objection as regards the application, being an objection of the description given in subsection (16) below.

It may be noted that sec 48(3)(b) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) contains provision for an additional category of objector to be added to sec 58A, being “any other person the Commission consider has a relevant interest in the application”. However that provision came into effect only on 1 October 2011; Part 1 of the Schedule to The Crofting Reform (Scotland) Act 2010 (Commencement No. 2, Transitory, Transitional and Saving Provisions) Order 2011, SSI 2011 No. 334 (C. 29). Subsec (16) merely required that the objection be in writing or some other permanent form.

[9] Subsec (6) provided that where the Commission received objections by virtue of subsec (4) which they did not consider to be frivolous, vexatious or unreasonable they must intervene in the application and that otherwise they could intervene if it appeared to them that any of the general conditions (see below) or any special conditions applied to the application.

[10] The general conditions just referred to were set out in subsec (9), as follows:-

The general conditions are –

(a) that, were the proposal to be implemented, there is reason to suppose that any or all of the following would be affected adversely –

(i) the interests of the estate which comprises the land;

(ii) the interests of the crofting community mentioned in subsection (4)(b) above;

(iii) the interests of the public at large;

(iv) the sustainable development of the crofting community so mentioned; and

(b) that such information as is contained in the application and its accompanying documents is insufficient for them to come to a decision as respects the proposal.

[11] Sec 52A, as amended by sec 50 of the 2010 Act contains the main appeal provision governing appeals from the Commission to this Court and, so far as relevant for present purposes, is as follows:-

(1) An appeal shall lie to the Land Court, on one or more of the grounds mentioned in subsection (3) below, against –

(a) any decision, determination or direction of, or

(b) the imposition of a condition by,

the Commission on an application made to them under this Act.

(2) The appeal –

(a) is to be made at the instance of the applicant or of any person with an interest in the application, and

(b) must be brought within 42 days after the Commission dispose of the application.

[12] Sec 61(1) contained, and contains, the following definition of “crofting community” –

“crofting community” means all the persons who (either or both) –

(a) occupy crofts within a township which consists of two or more crofts registered with the Crofters Commission;

(b) hold shares in a common grazing associated with that township.

Resolving the issues

[13] We consider that the correct approach to resolving the issues in this case is to ask, first of all, whether the non-crofter appellants were, or could have been, competent objectors to the application for assignation. We say that because it can hardly be the case that someone who is not entitled to object in the first place is nevertheless entitled to appeal against the Commission’s decision.

[14] As we have seen only three categories of persons were permitted to object in terms of sec 58A(4) of the 1993 Act as it stood on 20 January 2011. None of these is apt to cover the appellants other than Dr Stewart and Mr Waterston. The other appellants are not landlords or owners of land which is part of the common grazing, in terms of paragraph (a) they neither occupy crofts nor hold shares in the common grazing and so cannot be members of the crofting community (as defined in sec 61(1)) for the purposes of paragraph (b) and paragraph (c) does not apply because sec 8 does not identify any person for the purposes of subsec 58A(4) in connection with an application for consent to the assignation of a croft.

[15] The appellants argue that since there are no resident crofters in Fearnamore there is no crofting community in the traditional sense and that the phrase “crofting community” must, therefore, be given a wider meaning so as to include the community of residents which in fact exists in Fearnamore.

[16] There is no merit in that argument. In the first place there is a crofting community in the locality of Fearnamore in that there are two or more people who occupy crofts registered with the Commission in the township, albeit they do not live in Fearnamore itself. For these purposes we consider that “occupy” simply means “is the tenant of a croft”. Secondly, even if we are wrong about that, the mere absence of a crofting community would not, of itself, open the statutory door to a wider class of objector.

[17] We are therefore satisfied that the appellants Jennifer Outhwaite, Paul Simpson, Dale Sinclair, Stacy Sinclair, Barry Marsh, Ken Hills and Hannah Illsley could not have competently objected to Donald Johnston’s application to the Commission.

[18] In our view that is sufficient to dispose of matters so far as these appellants are concerned. The appellants however try to circumvent the difficulty posed for them by sec 58A by saying that they in any event have an “interest in the application” for the purposes of sec 52A(2). Before we go on to deal with that we would say this. Undoubtedly the character of many crofting townships has changed enormously over the last 30 years or so. The number of active crofters has declined and the number of homes situated on non-croft land has increased. Whereas formerly the number of crofters living on their crofts would always have exceeded the number of people living on feus, the balance has now, in some cases, tilted the other way. Fearnamore seems to represent a particularly stark example of that trend, having no resident crofting population. In that situation it will often be the case, as it is in Fearnamore, that there will be an “interface”, to use the appellants’ term, between the interests of crofters and non-crofters. The sort of problems which arise in this case will, therefore, not be uncommon in the future. It may have been for that reason that the Scottish Parliament deemed it appropriate, in the 2010 Act, to widen the category of objectors under sec 58A(4), although we express no view as to the meaning or scope of the new provision introduced by sec 48(3) of the 2010 Act. However, even if that was the intention behind sec 48(3), it came too late to be of assistance to the would-be appellants in this case.

[19] We now turn to the appellants’ submission that they have an interest in this application within the meaning of sec 52A(2). The nature of that interest is expressed as follows at paragraph 8 of the appellants’ Answers of 19 July 2011:-

“We submit that the real interest we seek to enforce or protect is not only the croft land which surrounds our private residences, our servitude rights, our access, and our private property, but also the value of the private residences themselves.”

That may be said to be their patrimonial interest in the matter. They also have an interest in preventing their quality of life being adversely affected by someone they obviously consider to be a source of conflict acquiring the tenancy of 4 Fearnamore (see, for example, paragraph 17 of said Answers and paragraph 55 of the original application).

[20] Accordingly we have no difficulty in accepting that those of the appellants who live in Fearnamore have a very real interest in the matter of who is to be the tenant of croft number 4. That is not, however, necessarily the same as having an interest “in the application” for the purposes of the 1993 Act and it is the meaning of that phrase which we require to consider.

[21] Parliament could, in sec 52A, have expressly restricted the right to appeal to those who had been party to procedure before the Commission. It has not done so. Nevertheless, as we have already observed, it can hardly have been intended that a wider class of persons could appeal than could competently have objected. Sec 52A(2)(a) can be sensibly interpreted in a way which does not lead to such a result. Firstly, the phrasing can be regarded simply as a convenient shorthand way of encompassing anyone within the three categories referred to in sec 58A(4). Secondly, the phrase may have been intended to leave the door open to competent objectors who for some good reason had not lodged objections with the Commission. For instance, it is possible to figure a situation in which it is only after the Commission’s decision is announced that the would-be objector becomes aware of the application or becomes aware of something which makes him want to change his mind and object after all. We consider that it is in these senses that the phrase “person with an interest in the application” is to be understood. Accordingly we have concluded that it does not have the effect of allowing persons who could not have been competent objectors to become competent appellants.

[22] Accordingly we have decided that the appellants Jennifer Outhwaite, Paul Simpson, Dale Sinclair, Stacy Sinclair, Barry Marsh, Ken Hills and Hannah Illsley are not entitled to pursue the appeal.

[23] We realise that the foregoing will strike the appellants as an unduly narrow approach, one which in their pleadings they implore us not to take:-

“We would suggest that the Act must be interpreted in the light of the current crofting model at Fearnmore. Disallowing the interest and the expression of property owners in this particular Appeal cannot be right or fair. If the Act is to be interpreted narrowly, such that only crofters have the right o Appeal, this would create the unjust situation where land owners have no right or say over their surrounding environment.” (Paragraph 18 of said Answers)

While we are not without sympathy for the point so tellingly made in that paragraph we cannot read the legislation as permitting the wider approach which the appellants commend.

[24] That leaves the question of whether Mr Waterston is a competent appellant. He could have objected but did not do so. His reasons for not doing so are not explained.

[25] Since it is arguable that the wording of sec 52A(2)(a) is wide enough to include persons who would have been competent objectors but who can show good cause as to why they did not object, we have allowed Mr Waterston 14 days within which to lodge further submissions explaining why he should now be allowed to pursue this appeal.

[26] As we understand it neither William Johnston nor the Commission question the interest of Dr Stewart and Mr Waterston, as crofters, to pursue an appeal and we need not, therefore, address that matter. Their objection is, rather, that the objections lodged by Dr Stewart and repeated on behalf of all of the applicants in this appeal are irrelevant. Mr Johnston’s agents also argue that the objections received were frivolous and unreasonable and that, in terms of sec 58A(6), the Commission were not obliged to entertain them. These are matters for consideration when a hearing takes place on the merits of the appeal. Now that these preliminary matters have been disposed of, subject to clarification of Mr Waterston’s position, parties should begin liaising with Mr Nugent, Clerk of Court, as to when and where such a hearing should be held, unless, of course, all parties agree that the matter can be disposed of on the basis of their written pleadings.

[27] We have ordained parties to lodge any motions and submissions they wish to make in relation to the expenses of this preliminary procedure within 28 days.