Decision of the Scottish Land Court

MacDougall (Appellants) v The Crofting Commission (Respondents)

Case reference SLC 75/14
before
Lord Minginish, Chairman, and John A Smith
26 May 2016

[1] This is an appeal under sec 52A of the Crofters (Scotland) Act 1993 (“the 1993 Act”) against a decision of the respondents to refuse an application by the appellants for the decrofting of an area of 2.16 ha (reduced from 2.72 ha in their original application) of the croft known as 95 Druimanairgeid, Rogart, Sutherland.

Background and procedural history

[2] The appellants are owner-occupiers of the croft, having purchased it in August 2010. They had purchased the crofthouse, known as Garvalt, in December of the previous year. The crofthouse site, extending to 0.1669 ha, was decrofted in August 1995.

[3] The croft extends to 7.2 ha. It is one of five crofts in the township of Druimanairgeid. There are common grazings but this croft no longer appears to have a grazings share. It is, nonetheless, part of a crofting community within the meaning of sec 61 of the 1993 Act.

[4] The application for decrofting was submitted on 22 November, 2013. It gave as the purpose of decrofting “Used as ornamental garden ground (domestic). Crofting activity non-viable on 2.72 ha (4.30 ha remaining)”. In answer to a question as to why a larger area than 0.1000 of an hectare was proposed to be decrofted, the appellants said “Established ornamental amenity garden/recreational use (family) to protect the residential amenity of the house ‘Garvalt’”. In a note attached to the application this was elaborated on as follows:

“In the materially changing social and economic circumstances of the Parish of Rogart, and as the present owner/occupiers of ‘Garvalt’ …, the small former croft house, we consider that the present garden ground is inadequate particularly in relation to our proposed extended seven apartment, 4 bedroom family house.

As enthusiastic gardeners, to protect and enhance the residential amenity for exclusive, more suitable, more valuable ornamental garden and recreational use we seek to decroft 2.72 ha, part of the adjoining 7.20 ha croft in our ownership …, as shown bounded blued on the enclosed 1/1250 OS plan.

In our view, the non-arable land in question (the topography and features comprising the burn, Garbhailt, the three parallel flood relief trout ponds, the quarry crater, the access road and embankments, the wood, the standing stones, the bog, the shed and yard) lends itself to domestic garden use with potential for recreational use, tree planting, quad track, archery, 9-hole golf course and fishing.”

[5] Having received the application the respondents carried out their usual procedure. This included getting reports from the local Scottish Government Rural Payments and Inspections Directorate (“SGRPID”) office at Golspie and the respondents’ local assessor for the Rogart area.

[6] In his report the SGRPID official, Mr Murdo MacKenzie, described the croft and its use as follows:

“The total area of the croft … is 7.02 hectares. The land quality is variable with some pockets of decent grassland but the quality decreases the further east you go to land that is severely limited and capable of use only as rough grazings. Only 4.30 ha of the croft is currently used agriculturally (this is the area that is left when excluding the 2.72 ha applied for) and about 0.80 ha of this is cut for hay with the remainder grazed occasionally by neighbours’ sheep”.

[7] Commenting on the quality of the land proposed to be decrofted, he said this:

“Again the quality of this land is variable from fairly decent grassland to very poor rush infested wetland. Mr and Mrs MacDougall have already converted this area to form a large amenity garden, split into a number of different sections comprising the following areas: woodland; golfing; water features, including three flood relief trout ponds; standing stones; a quarry crater; and a rushy wetland bog.

This part of the croft has not been used for agricultural purposes for some time now as [it] is used entirely for amenity and recreational use.”

[8] Mr MacKenzie was also asked for his assessment of “any impact (positive and negative) approval of the application will have on the crofting community, the sustainability of the crofting community or the public at large”, to which he answered:

“There have been no representations from anyone in the crofting community or the public at large to this proposal. This suggests that the impact approval of the application will have is pretty well a neutral one with a sense of indifference to the whole proposal. Those in the area have also seen for themselves the work carried out by Mr MacDougall and realise that there is little likelihood of the area being used for traditional type crofting activities again.

The main negative impact will be the loss of a substantial area of croft land in a traditional crofting stronghold.”

[9] Mr MacKenzie’s report also incorporated the comments, in letter form, of the respondents’ local Area Assessor, Mr Bob Meeres. He was supportive of the application:

“Mr & Mrs Macdougall love their croft dearly, but it isn’t a viable business and they are not crofters in the traditional way. Despite this they do take hay off the fields and allow neighbours occasionally to graze sheep/cattle to keep the ground in good fettle.

But their true love is gardening and creating a wildlife habitat, (with the odd putting green) which they can build on over the years. They have already put in a lot of investment in creating this natural environment, with ponds and wild areas, standing stones etc., with more planned including specimen tree planting. This in turn is helping sustain a living working population in the area. But before making further investment Mr & Mrs Macdougall want to decroft this area, so it permanently becomes a garden to go with their house, with the security of knowing it will always be their garden, a freehold. I quite understand their thoughts and reasons, and although the area is larger than a usual garden decroft application, it is not going to have a negative effect on crofting or the community rather a positive one with the continued investment so I feel this decrofting application should be allowed.”

[10] On 25 July 2014 the respondents issued their decision letter refusing the application for the following reasons:

“Although the reason given for decrofting is that the area consists of an identified ornamental garden ground and to allow for Title of the area applied for to be combined with the Title to the applicants’ house feu, the Commission consider that the primary reason for decrofting is to be free from the scope of the Crofting Acts. The Commission’s Policy Plan at paragraph 59 states ‘Applications made simply to ensure that the responsibilities of the Crofting Act do not apply to the land are unlikely to be approved’.

It is noted that the applicants state in their letter of 6 May 2014 ‘We have applied to decroft the stated, readily identified, 2.72 ha ornamental garden ground in order that the 2.72 has feu area can be combined within the Title to our house feu’. The Commission do not consider this to be in itself a justifiable reason for removing land from crofting tenure.

The Commission consider it would be detrimental to both the croft and the crofting community to have such a large area, in proportion to the size of the croft, removed from crofting tenure as it would deprive the current and any future occupier of the croft from having this land available as part of the croft. It is the Commission’s opinion that retaining this land in crofting tenure supports the sustainability and integrity of the croft. It also considers it to be in the wider interests of the crofting community for the land to remain in crofting tenure.

It is noted from the reporting officer’s comments that the land which is the subject of this application ‘is variable from fairly decent grassland to very poor rush infested wetland”. Although some of this land may be of limited agricultural value, nonetheless it could have value to a future occupier of the croft should they wish to improve the poor area and/or graze stock on the better area.

[There follows a reason with which we are no longer concerned as a result of subsequent developments described below.]

The Commission noted and took into consideration the submission made by the Area Assessor, however, for the reasons given above do not consider that the removal of the area from the pool of croft land would fail to have a negative effect on crofting or the crofting community.”

[11] On 4 September 2014 the appellants appealed that decision to this court. After sundry procedure they removed an area of land extending to 0.56 ha, over which access ran to the rest of the croft, from the application. By our order of 10 March 2015 we remitted the matter to the respondents for reconsideration on the basis of the application as now amended.

[12] On 5 October 2015, following their reconsideration of the application, the respondents refused the amended application. In doing so they adhered to the reasons given in their letter of 25 July and stated some additional reasons and elaborations of the earlier reasons:

“The Commission notes that there is an active crofting community in the area of Rogart. In the Commission’s judgement the purpose for decrofting (and the reasonableness or otherwise of that purpose) has not been clearly stated by the applicants, as the application form variously states that the land is to be used as amenity to the existing dwelling-house ‘Garvalt’, that the land may be used as amenity for a proposed extended ‘seven apartment, 4 bedroom’ dwelling-house, that the land may be used for recreational purposes, tree planting, archery, a golf course and that the land is used as ‘ornamental garden ground’ on which crofting activity is stated to be ‘non-viable’.

The Commission having considered the reduced area applied for is of the view that the removal of a substantial area of croft land extending to over 2 hectares from the croft, which could be used for cultivation and/or a purposeful use, will not be in the interest of the croft or in the general interests of the crofting community in the locality as it will result in a reduction in the pool of croft land from crofting tenure in the area. The Commission has considered the effect of the removal of an area of 0.56 from the area originally applied for, but does not consider that the reduction in the area applied for is sufficiently material to cause the Commission to change its grounds of refusal as stated in its letter of 25 July 2014 …

[The next reason is largely a repetition of one contained in the original letter.]

The Commission considers that it would be detrimental to both the croft and the crofting community to have an area of croft land of over 2 hectares (which is large in proportion to the size of the croft, which stands at approximately 7 hectares) removed from crofting tenure as it would deprive any future occupier of the croft from having this land available as part of the croft. The Commission must take a long-term view with regard to the general interest of the crofting community in the district and consider the effect on the community of an irrevocable decision to decroft.

The Commission recognised that the croft is not available for re-letting and is unlikely to become available in the short term, but the evidence from the reporting officer is that in an active crofting area such as Rogart, there would be demand locally for croft tenancies if the croft were available for re-letting. It is the Commission’s judgement that the loss of over 2 hectares of land … capable of cultivation or being put to a purposeful use from croft extending to approximately 7 hectares in total would materially diminish the sustainability of the croft.”

[13] The letter goes on to note that it would be possible for any occupier to use the land for a purposeful use in terms of sect 19C(2)(c)(ii) or section 5C(8) of the 1993 Act without having to decroft the land.

[14] The appellants have now renewed their appeal against this renewed refusal and parties have agreed that we should deal with the matter on the basis of written submissions. As will be seen in what follows, conducting their own case and enraged by what they see as the respondents’ unreasonable attitude, many of the appellants’ submissions lacked focus and coherence and some of them were simply spurious. We have fitted them into the statutory grounds of appeal set out in sec 52A(3) as best we could. Having done so, some have been easily dismissed but the fundamental complaint about the respondents’ exercise of their discretion has been sustained.

Legislation

[15] All references are to the 1993 Act. The appellants are owner-occupiers of their croft rather than owner-occupier crofters within the meaning of sec 19B of the Act. The provisions relating to the latter introduced by the Crofting Reform (Scotland) Act 2010 and the Crofting (Amendment) (Scotland) Act 2013 do not, therefore, apply. It seems to be accepted (given the limited nature of the 2013 provisions) that the unamended provisions apply in the case of owner-occupiers who are not owner-occupier crofters.

Sec 24(3)

Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application, and if the Commission direct under this subsection or under subsection (2) above that a croft shall cease to be a croft then, subject to subsection (4) below, this Act shall cease to apply to the croft, without prejudice, however, to the subsequent exercise of any powers conferred by this Act or any other enactment for the enlargement of existing crofts.

Sec 25

(1) The Commission shall give a direction under section 24(3) of this Act that a croft shall cease to be a croft if

(a) subject to subsection (2) below, they are satisfied that the applicant has applied for the direction in order that the croft may be used for or in connection with some reasonable purpose (within the meaning of section 20 of this Act) having relation to the good of the croft or of the estate or to the public interest or to the interests of the crofting community in the locality of the croft and that the extent of the land to which the application relates is not excessive in relation to that purpose;

(1A) In determining whether they are satisfied as mentioned in subsection (1)(a) above (and, in particular, whether the reasonable purpose mentioned there relates to the public interest), the Commission –

(a) may take into account the effect that purpose (whether alone or in conjunction with other considerations) would have on the matters mentioned in subsection (1B) below; …

(1B) The matters mentioned in subsection (1A)(a) above are –

(a) the sustainability of –

(i) crofting in the locality of the croft or such other area in which crofting is carried on as appears to the Commission to be relevant;

(ii) the crofting community in that locality or the communities in such an area;

(iii) the landscape of that locality or such an area;

(iv) the environment of that locality or such an area;

(b) the social and cultural benefits associated with crofting.”

Cases

[16] No cases were referred to in parties’ submissions but the following are referred to by the Court in this note:

Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Eunson v Crofting Commission SLC/10-14/15, decision of 1 March, 2016
Knight v Crofters Commission 1999 SLCR 102
MacColl v Crofters Commission 1985 SLCR 142
Steven v Crofters Commission 1984 SLCR 30
Sutherland v Crofters Commission 1991 SLT (Land Ct) 81
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345

Grounds of Appeal

[17] Before dealing with the appellants’ grounds of appeal it is appropriate to say something about what kind of decrofting application this is. Is it an application under sec 24(3), invoking the respondents’ general discretion to grant a decrofting direction, or under sec 25(1)(a) of the 1993 Act, requiring a reasonable purpose having regard to the interests listed there to be shown?

[18] Although the section being proceeded under is not specifically mentioned in the respondents’ casework paper and subsequent decision letters, it appears to have been sec 24(3). Thus the application is described as a “General Purpose “ application on the first page of the casework paper and there is no discussion in the paperwork of a reasonable purpose within the meaning of sec 25(1)(a). We think that is the correct classification of the application since it does not seek to remove the land from crofting so that it can be used for some (other) reasonable purpose. The land is already in use as an ornamental garden and it is not proposed to change that. That use is entirely compatible with crofting legislation and there is therefore no requirement to remove it from crofting so that it can be dedicated to that use. The purpose of the application is, rather, to free the land from crofting tenure so that it can be added, free of such restriction, to the feu of the house, thereby increasing its value. There is nothing improper or to be disapproved of in that purpose but it is not a reasonable purpose within the meaning of sec 25(1)(a). Neither does the application fall to be dealt with as an application under sec 25(1)(b) involving the site of the dwelling-house on or pertaining to the croft and an extent of garden ground appropriate for its enjoyment. Here the crofthouse has already been decrofted. So the application properly falls to be treated, as the respondents have done, as an application under sec 24(3).

[19] The consequence of that is that there is no presumption in favour of decrofting (as there is where a reasonable purpose under sec 25(1)(a) has been established) nor any presumption against: see Lord McGhie’s analysis of this in the Full Court decision in Knight v Crofters Commission at pp 115-120. Instead the nature of the exercise is a balancing one between the reason being given for decrofting, on the one hand, and any negative effect on the local crofting community (where there is one), on the other. We return to that in our discussion of the respondents’ exercise of their discretion under sec 52A(3)(f) below.

[20] Having set the application in that context, we turn to the individual grounds of appeal.

[21] Sec 52A(3)(a) – that the Commission erred on a point of law

(i) The first matter advanced under this head is that the owner has an absolute right to have his established domestic garden ground decrofted and taken out of crofting tenure. That is simply not correct: there is no statutory provision to that effect.

(ii) The second matter is that there is no provision in the Act, nor in the Commission’s policies, specifically prohibiting the use of 2.16 ha as a domestic ornamental garden. That is true but the respondents have not said otherwise and they cannot therefore have erred in law in this respect.

(iii) The third point taken by the appellants under this head appears simply to restate the immediately preceding point slightly differently. The same response therefore applies.

(iv) It is then said that there is no provision in the Act, nor in Commission policy, specifically “dictating against” decrofting any area of existing, clearly defined domestic ornamental garden ground. That too is true but, again, the respondents have not said otherwise. In this and the two immediately preceding points the appellants are confusing a right to use their land for whatever size of garden they see fit (which the law gives them) and the right, having done so, to have that land decrofted (which the law doesn’t give them). All the lawgives them is the right to apply to the respondents for a decrofting direction and the right to have that application decided by the respondents by the correct application of the statutory provisions.

(v) It is said, in the first place, that the Commission’s suggestions of alternative uses to which the existing garden could be put are irresponsible and irrelevant. Whilst we would not characterise them in that way ourselves, there is force in the argument that return of this land, already highly developed as a garden, to ordinary agricultural use is highly unlikely. Mr MacKenzie acknowledged that in his report when he said that local people, having seen the work carried out by the appellants, realise that there is little prospect of this ground being used for traditional type crofting activities again. Whilst one should never say never, that seems to us to be a realistic assessment of the situation so far as the foreseeable future is concerned. The respondents’ lack of realism in relation to this is not an error of law but we do take account of it in our discussion of the exercise of their discretion below.

(vi) It is also said that it is a matter for the appellants’ discretion how to best use and work the land and that the extent of 2.16 ha cannot be said to be excessive. The first part of that is correct but, again the respondents have not said otherwise. On the contrary, they freely acknowledge the truth of it. What they have said is that there is no need for the land to be decrofted in order to provide a garden of this kind because crofting law allows such use. That is a correct statement of the law. The point about the area being excessive is a point the respondents are always bound to consider. In cases under sec 25(1)(a) involving decrofting for a reasonable purpose, it is a condition of granting decrofting that the area is not excessive in relation to that purpose. There is no equivalent in sec 24(3) but that does not mean that the size of the area to be decrofted is irrelevant or that the Commission are prohibited from taking that into account. On the contrary, they will almost always have to take account of it. An exception might be where there is no crofting community in the locality whose interests could be affected by the decrofting.

The appellants argue that the area of an existing garden cannot be said to be excessive: that it is what it is. But that is not the point. An area of ground sought to be decrofted can be excessive in relation to either, or both, the purpose for which decrofting is sought and the total area of the croft. In this case we think the respondents considered it excessive on both counts, taking the purpose to be provision of amenity ground for the appellants’ house. In other words they are, we think, saying that the area to be decrofted is too big both in relation to the house and to the total area of the croft. Whether that conclusion is right or wrong (and we return to this in the final section of our judgement) it was not an error of law on the part of the respondents to take a view on it.

(vii) Finally under this head it is said that “The crofter first and foremost is entitled to the full domestic benefit of the land – crofter first, crofting second”. We agree with the first part of that but don’t understand the second. In any event it adds nothing to the appellants’ case.

[22] That exhausts this ground of appeal. Although none of the arguments advanced provides a basis for sustaining the appeal, we carry forward some of the matters discussed under (v) to the final section of our judgement.

Sec 52A(3)(b) – that the Commission made a finding as to a fact material to the decision but did not have sufficient evidence on which to base that finding

[23] The finding of fact complained of here is characterised by the appellants as being that there is demand for this particular croft from would-be tenants. That is not quite what the respondents decided. What they held was that “there would be demand locally for croft tenancies if the croft were available for re-letting” (final bullet point of their second decision letter). The basis for that conclusion was Mr MacKenzie’s comment in his second report, dated 29 June 2015, that “there would be demand locally for croft tenancies if the price was right”. We read that comment, in its context, as somewhat half-hearted – Mr Mackenzie makes clear that he says it because of assumptions he has been asked to make - but it is evidence of what it says and it provides an adequate basis for the respondents’ finding. This ground of appeal therefore fails.

Sec 52A(3)(c) – that the Commission acted contrary to natural justice

[24] The thrust of the appellants’ argument under this head is, in essence, that the respondents have been biased, discriminatory and (although this word is not actually used) oppressive in what they have done. They complain that the respondents have no policy of encouraging larger gardens in the crofting counties and that the policy they do have (of controlling garden sizes for decrofting purposes) is short-sighted, “strangling potential adventurous desirable low density luxury housing development”. They say that the policy of limiting house plot and garden sites to 0.1 ha is unnecessarily restrictive of diverse development and without statutory warrant. The hint of oppression comes from their remark “Once a serf, always a serf”.

[25] Appeals on the basis of actions contrary to natural justice have as their focus unfairness in the handling of a case and in reaching a decision on it; things like not giving a party a fair hearing. In a sense that is what the appellants are claiming here. They refer to “The Commission’s obvious resolve in strenuously opposing the appellants more than reasonable Application”. What that hints at is an accusation that the respondents were determined to refuse the application no matter what anyone said, no matter what the evidence was.

[26] There is room for such an argument under the other grounds of appeal but we can identify no procedural unfairness which would justify a finding of acting contrary to natural justice. This ground of appeal therefore fails.

Sec 52A(3)(d) – that the Commission took into account certain irrelevant or immaterial considerations

[27] It is said that the loss of 2.15 ha of land to crofting is irrelevant and immaterial. This is one of the appellants’ more preposterous submissions. It is ridiculous to suggest that this was something of which the Commission should not have taken account: on the contrary it was one of the fundamental issues – perhaps the fundamental issue – they had to consider. This ground of appeal is refused.

[28] Sec 52(3)(e) – that the Commission failed to take into account certain relevant or material considerations

(i) First, it is said that the respondents failed to take account of the fact (as the appellants aver) that the ground to be decrofted is, in its natural state, (a) incapable of producing “barley, potatoes, turnips, rhubarb or apples”, - by which we take the applicants to mean any produce – and (b) unsuitable for, or incapable of, grazing livestock.

It is not the case that the respondents failed to consider these matters. In their letter of 25 July 2014 they say:

“It is noted from the responding officer’s comments that the land which is the subject of this application ‘is variable from fairly decent grassland to very poor rush infested wetland’. Although some of this land may be of limited agricultural value, nonetheless it could have value to a future occupier of the croft should they wish to improve the poor area and/or graze stock on the better area.”

(ii) It is also said that the respondents failed to recognise that the land in question was suitable for, and capable of, providing a variety of recreational features. We do not think that the respondents can be said to have failed to consider this. After all, the suitability of the land for these purposes is proved by the existence of the garden in its present state. The respondents take no issue with that. In the final substantive paragraph of their letter of 5 October 2015 they point out that it would be open to a crofter to put the land to a range of purposeful uses: in other words that there is no need for the land to be taken out of crofting to secure either its present use or its potential for certain uses beyond that.

(iii) The next point made under this head is that the respondents have failed to take account of a net gain to crofting caused by their wrongful (as we understand the appellants) apportionment of a share in the common grazings pertaining to their croft to a Mrs MacDonald who lives in Dingwall and has never used it. This new “croft” extends to 7.689 ha and the net gain referred to is the result of subtracting the area proposed to be decrofted from that figure. The appellants’ point is that the wrongful apportionment has led to a gain in the land available to the rest of the crofting community at the expense of the appellants. However, if it was common grazings it would have been available, pre-apportionment, for the use of all those holding a share in the grazings. So, in that sense, it cannot be said to be a gain to the rest of the crofting community but, even if it was, we do not think it was something of which the respondents were obliged to take account when considering whether the 2.16 ha in question should be decrofted.

(iv) Next it is said that the respondents failed to take account of the fact that the garden, with its numerous improvements and developments, “is more relevant to the dwelling house than the croft and thus should be taken out of crofting tenure”. They say that there is no other owner-occupied garden attached to an owner-occupied house in Scotland which is under crofting tenure. However, the distinction between house and croft is a false dichotomy. The garden can provide amenity to the house while remaining part of the croft. What it cannot do, of course, is add maximum economic value to the house while remaining under crofting tenure. That is, we think, the appellants’ real complaint. It is at least hinted at in a submission to the Court dated 10 December 2014, in which the Mr MacDougall says, at para 8, “I wish to be able to gift, bequeath, lease or sell my landed investments to anyone in the open market no matter where normally domiciled” and in a statement accompanying the grounds of appeal submitted on 9 December 2015 where he says “I agree with the Commission that the primary reason for decrofting (my garden) is to be free from the scope of the Crofting Acts”. It may have been helpful to the respondents if these objectives had been stated more clearly at the outset but the respondents know very well that one of the reasons for wanting to be free from crofting restraints is to maximise the value of the land in question.

Whilst we do not think the appellants have focused this aspect of the appeal in quite the right way, what it comes to is a contention that the respondents failed to take account of what there was to be said in favour of decrofting. We think there is some force in that criticism. The applicants’ reasons for seeking decrofting are dealt with in the first two grounds of refusal contained in the decision letter of 25 July 2014, which it is convenient to repeat here:

“Although the reason given for decrofting is that the area consists of an identified ornamental garden ground and to allow for Title of the area applied for to be combined with the Title to the applicants’ house feu, the Commission consider that the primary reason for decrofting is to be free from the scope of the Crofting Acts. The Commission’s Policy Plan at paragraph 58 states ‘Applications made simply to ensure that the responsibilities of the Crofting Act do not apply to the land are unlikely to be approved’.

It is noted that the applicants state in their letter of 6 May 2014 ‘We have applied to decroft the stated, readily identified, 2.72 ha ornamental garden ground in order that the 2.72 ha feu area can be combined within the Title to our house feu …’. The Commission do not consider this to be in itself a justifiable reason for removing land from crofting tenure.”

There seems to us to be no engagement there with the merits of this particular case. So far as the first paragraph is concerned, the quotation from the respondents’ policy plan reflects the law and practice accurately (see the cases of Steven v Crofters Commission, MacColl v Crofters Commission, and Sutherland v Crofters Commission) but it requires each case to be considered on its merits. That obliged the respondents to carry out the balancing exercise already referred to. As appears more fully in the next section of this judgment, we are not satisfied that they did so. On the contrary, it seems to us that there is little evidence of meaningful consideration having been given to the merits of this proposal; instead it seems to have been shut out as a matter of policy.

(v) It is also said that the respondents failed to take account of the fact that the remaining 4.30 ha of the croft is fully sustainable as a croft. That too appears to us to be true. In the third paragraph of the first decision letter it is said that a large area is being decrofted in proportion to the size of the croft. That is true but it takes no account of whether the remainder of the croft would be viable on its own. That matter is touched on in the second decision letter, where it is said (last two bullet points) that the loss of over two hectares capable of cultivation or purposeful use would materially diminish the sustainability of the croft. However, at 4.3 ha (10.63 ac) it would not by any means be the smallest of crofts. According to Mr MacKenzie’s report part of it is being used to cut hay and the remainder is occasionally grazed by neighbours’ sheep. It accordingly seems to have some agricultural value and there is no evidence that it would not be attractive to potential tenants were it to be available as a croft. That is a factor which ought to have been taken into account.

(vi) Finally under this head, it is said that the respondents failed to take account of the evidence of Mr MacKenzie, to the effect that there was little likelihood of this area being used for traditional crofting activity again, and of Mr Meeres, who supported the application. Again we think this is correct because, although reference is made in the first decision letters to the reports of the reporting officer and the Area Assessor, there is no evidence of engagement with what they say, beyond repeating Mr MacKenzie’s statement that “the main negative impact will be the loss of a substantial area of croft land in a traditional crofting stronghold”. Nothing is said about the absence of opposition nor about Mr MacKenzie’s suggestion that the impact approval of the application would have would be “pretty … well neutral” and that there was very little likelihood of the area being used for traditional type crofting activity again. And so far as Mr Meeres’ report is concerned, no notice appears to have been taken of his conclusion that decrofting “is not going to have a negative effect on crofting or the community, rather a positive one with the [intended] continued investment”. These are all matters which ought to have been taken into account in favour of the application.

[29] Accordingly we sustain this ground of appeal in respect of failure to take account of the following relevant or material considerations: (a) the merits of the application, (b) the viability of the remainder of the croft as a crofting unit, (c) the whole terms of Mr MacKenzie’s report, and (d) Mr Meeres’ evidence that the effect on crofting and the local community of granting the application would be positive, not negative.

52(3)(f) that the Commission exercised their discretion in an unreasonable manner

[30] In the recent case of Eunson v Crofting Commission we held that, although aspects of the respondents’ decision-making process has been flawed the result of the exercise of their discretion could nevertheless not be faulted because the decision they came to was, in all the circumstances, almost inevitable. That is not the position here, where, at the very least, there are strong contra-indicators pointing to the possibility of a different decision.

[31] In these circumstances, the test under this ground of appeal is whether the respondents’ decision was so unreasonable that no reasonable authority, properly directed in law, could ever have come to it; Associated Provincial Picture Houses Ltd v Wednesbury Corporation, per Lord Greene MR at p 233, Wordie Property Company Ltd v Secretary of State for Scotland, per Lord President Emslie at p 347.

[32] This involves carrying out the foresaid balancing act. The factors in favour of granting the application seem to us to be: (i) that the applicants had expended a great deal of time, effort and, no doubt, money in improving this area for the amenity of the house; (ii) that it was not unreasonable for them to seek to be in a position to recoup that investment in terms of adding value to their home; (iii) that the reality of the situation was that the land was not going to be returned to traditional crofting use for a very long time, if ever; (iv) that the land was of limited agricultural value; (v) that granting the application would still leave a croft of sufficient size and agricultural value to be likely to attract the interest of future tenants; (vi) that there were no objections from the local crofting community, and (vii) on the contrary, the respondents’ Area Assessor had supported the application. Against the granting, the factors are these: (i) that this is very large area of land, vastly in excess of what the Commission normally allow as amenity ground for a crofthouse; (ii) that decrofting is not necessary for the purpose of allowing the land to be used as amenity ground for the house, and (iii) that it would make the croft less attractive to future tenants.

[33] Ultimately what all such balancing exercises come to is a balance between the applicants’ interest in having the land decrofted, on the one hand, and the effect on the crofting community in the locality of the croft on the other. Here there is clearly a very strong personal interest on the part of the applicants. They can enjoy the land as it is, without decrofting, but they cannot realise the financial value of their investment. What of the other side of the equation? It is a large area of land relative to the size of the croft but not so large as to make the rest of the croft unsustainable. It is not a large area of land in relation to the local crofting community. It is, nevertheless grossly in excess of what is normally allowed by the Commission for amenity purposes. As we understand it, however, that policy applies to advance of purchase decrofting orders under sec 25(1)(b) which obliges the Commission, as a matter of law, to be satisfied that the extent of garden ground included in the purchase is “appropriate for the reasonable enjoyment of the dwellinghouse as a residence”. Were this an advance of purchase application the Commission would have had to apply that test and the application would almost certainly fail. But it is not. It is an application under sec 24(3) and the test does not apply. Granting the application does not, therefore, drive a coach and horses through the Commission’s policy under sec 25(1)(b).

[34] Turning to the second factor, it is certainly true that the amenity of the land can be enjoyed without decrofting it. But that does not address the applicants’ legitimate wish (though not entitlement) to realise the value of their investment.

[35] Turning to the third factor (that granting the application would make the croft less attractive to an incoming tenant), it is also true but there would still be enough land left to be of interest to future tenants, as it is of interest to those who occasionally use it now. In this connection we have considered what Mr MacKenzie, the local SGRPID official said about the application’s main negative impact being “the loss of a substantial area of croft land in a traditional crofting stronghold”. However that is preceded by this:

“There have been no representations from anyone in the crofting community or the public at large to this proposal. This suggests that the impact approval of the application will have is pretty well a neutral one with a sense of indifference to the whole proposal. Those in the area have also seen for themselves the work carried out by Mr MacDougall and realise that there is little likelihood of the area being used for traditional type crofting activities again.”

Accordingly we do not think he comes down on either side of the balance.

[36] In carrying out this exercise it is right to bear in mind the bigger picture as well as the detail of the particular case. In that regard we are very mindful – as we know the Commission to be – of the cumulative effect of a multiplicity of small decrofting applications, each of them seemingly innocuous on its own terms but constituting a further erosion of the crofting land bank nevertheless. We have therefore considered whether in the Rogart area we are anywhere near a tipping point as to the sustainability of the crofting community. Mr MacKenzie’s comment about it being a crofting stronghold suggests not and we are therefore satisfied that such a concern does not constitute a proper reason for refusing the application.

[37] We have also considered whether granting this application would amount to authorising other owner-occupiers to appropriate as much as they want of their crofts – perhaps the entirety – for amenity use and then presenting the Commission with a fait accompli. In response to that, we venture to believe that there will be few who will go to the extraordinary lengths to which the present applicants have gone but even if there were each case would have to be considered on its merits. The decision we have come to in this case will not be determinative of any other. In each case the law must be applied to the facts and the result will be the one to which that process, properly undertaken, leads.

[38] On the whole matter, therefore, it seems to us that, whilst there are tangible and cogent reasons for granting, the opposing factors lack substance: they do not disclose a tangible negative impact on the local crofting community. It seems to us, therefore, that this is one of those rare cases where the balance weighs so heavily in favour of granting the application that it can be said that no properly directed body in the respondents’ position could reasonably have refused it. We have therefore quashed the respondents’ decisions of 25 July 2014 and 5 October 2015 and, in terms of sec 52A(4) of the 1993 Act, directed them to grant the application.

[39] Given the respondents’ very understandable concerns as to the extent of the land being decrofted, we have considered whether there is any basis for restricting the scope of the direction to be granted. We have decided that there is not. As the appellants says “It is what it is”; it is not easily compartmentalised so as to provide a basis for decrofting some but not the rest. Accordingly our order applies to the whole area applied for in terms of the amended application.

[40] Having come to that conclusion, we wish to make some comments which we hope will be of help to the Commission in considering future applications. We are keenly aware of the difficulty of their task. We hope that experience of such appeals shows that we do not interfere with their decisions lightly and that when we do we try to give not only clear reasons for doing so but clear future guidance. It is in that spirit that the following comments are made.

[41] We begin by accepting that the Commission have over-arching duties in terms of sec 1 of the 1993 Act and are obliged to produce and execute plans and policies under sec 2C. They have to be careful, however, as to the extent to which decisions on individual applications are policy-driven. Policy can perfectly properly inform the decision-making process but it must not over-ride law. One of the things the law requires is that each case is considered on its merits. With particular reference to decrofting, every decrofting application which is granted involves a loss of land to crofting. Yet the law recognises that decrofting ought sometimes to be granted. Thus, whilst the Commission are right to bear in mind the cumulative effect of granting a succession of small decrofting applications, they have to apply their minds to what impact decrofting is going to have in each individual case. As was very clearly elucidated by Lord McGhie in Knight at pages 115-119, the law recognises no presumption for or against decrofting, save where a reasonable purpose is proved under sec 25(1) and even there it is, of course, a rebuttable presumption. The Commission therefore have to engage meaningfully with the facts and circumstances of each individual case without any preconceptions and, for their decisions to be sustainable, they must be able to show that they have done so.

[42] More particularly, we would say that before deciding that granting a particular application is going to have a negative effect on the local crofting community they should be able to say what, tangibly, that effect is. The removal of land from crofting can never, in and of itself, be a good enough explanation. That is because the law allows decrofting and all decrofting involves the removal of land from crofting. Instead they have to relate it to the facts of the case. Good reasons for refusing decrofting would include cases involving very large areas of land relative to the rest of the croft or relative to the extent of crofting land locally available, or where the use to which the land is to be put is in some way inimical to local crofting interests, or where the sustainability of the croft is fatally compromised by the granting of the application or where local crofting demand for a tenancy will be thwarted by the granting of the application. In other words, decrofting can be refused for a variety of good reasons but where, on the facts of a particular case, none exists, policy must not be used to fill the vacuum.

Expenses

[43] We have allowed the usual period for the submission of motions and submissions on the expenses of the appeal.