THE COURT

(Lord McGhie, Sheriff R J MacLeod, Mr J A Smith)

MACKENZIE v CROFTERS COMMISSION

(Application RN SLC 80/10 – Order of 16 March 2011)

CROFT – APPLICATION FOR APPORTIONMENT – APPEAL BY STATED CASE – GROUNDS OF APPEAL – THE ROLE OF THE COMMISSION – NATURE OF APPEAL – EXPERT REPORTS – OBLIGATION TO GIVE PROPER REASONS – ACQUIESCENCE BY CROFTERS COMMISSION – EFFECT OF PROCEDURAL ERROR – FINDINGS ON INSPECTION – CONDITIONAL OR TEMPORARY GRANTS – CROFTERS (SCOTLAND) ACT 1993 SECS 20, 21, 52 (6) AND (10) AND 52A.

The appellant applied for apportionment of land situated across the road from her croft. She already had an apportionment and there was a dispute as to its suitability. In relation to that apportionment, the Commission relied on the views of its Chairman following inspection. In respect of the land in issue, the Commission had sight of reports purporting to show that it would be of very considerable agricultural value to the appellant. However, it was aware that the land had been zoned by the planning authority as suitable for housing. The appellant suggested that the Commission had failed to have regard to the terms of the reports or had given them insufficient weight. It was suggested that the Commission had placed too much weight on the prospect of development and had wrongly assumed that the appellant had declared an intention to develop the land for housing. It was also argued that the Commission should have made a temporary or conditional grant of apportionment.

HELD (1) that on examination of the detailed material relating to each of the grounds of appeal it was plain that none was soundly based; (2) the Commission had been entitled to have regard to the prospects of the land being used for development and to the respective rights and shares which would be lost if that was preceded by apportionment in favour of any one shareholder; and (3) it was not an appropriate case to remit to the Commission to consider a conditional or temporary grant as the appellant was free to raise a fresh application if she saw fit. It was also OBSERVED that the role of the Commission in relation to decisions on apportionment was not entirely free from difficulty and might require further discussion in a suitable case, having regard, amongst other things, to the fact that the appellant had no positive rights in the land other than the right to share in use for grazing and the fact that the respondents who did object would lose their rights if apportionment was granted.

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

[1] This is an appeal from a decision of the Crofters Commission deciding not to make an apportionment of part of the Achiltibuie Common Grazings in favour of the appellant. The appeal proceeds under the provisions of section 52A(2)(a) of the Crofters (Scotland) Act 1993, as amended. This provided for appeal by way of Stated Case. However, the appeal machinery has been changed with effect from 1 February 2011 by virtue of section 50 of the Crofting Reform (Scotland) Act 2010. In the circumstances, there is little point in detailed comment on the procedures adopted in this case. We commented, in our note of 11 June 2010, on the shortcomings of the original document bearing the heading "Stated Case".

[2] A revised Stated Case was received by the Court on 2 August 2010. It set out some of the background to the decision and the facts upon which the decision was based. It set out the full text of the appellant’s requisition for a Stated Case, including the original Grounds of Appeal. The Stated Case made no direct attempt to address the detail of these Grounds but simply set out questions of law for the Court which reflected the formal basis of each ground.

[3] By Order of 11 August 2010, we allowed the appellant, and other parties, time to respond to the new Stated Case. The appellant sought leave to change the Grounds of Appeal to answer what was said to be "the now entirely redrawn basis upon which the Crofters Commission apparently made their decision". Although it may be observed that the specification of Grounds of Appeal ought to precede the drafting of the Stated Case rather than be a response to it, we considered it appropriate in the whole circumstances to allow them to do so. We allowed the respondents time to lodge Answers and Observations on the amended Grounds. Mrs Sandra Macleod and Mr Murdo Macleod submitted observations. These made clear their continued opposition to the apportionment but did not attempt to make a formal response to the detailed Grounds of Appeal.

[4] After some enquiry was made as to the intentions of parties, our Order of 13 December 2010 appointed parties to lodge written submissions on the Stated Case and our Note explained that we would attempt to deal with the case on the basis of the existing pleadings and any written submissions. Written submissions in the form of letters were lodged by Mr Murdo Macleod, Mrs Sandra Macleod, Mr Scott A Macleod and Mr James Macleod. These again made clear their opposition to the apportionment. They made various assertions of fact but did not deal expressly with any of the specific grounds of appeal. On behalf of the Crofters Commission, their solicitor responded to say that they had nothing further to add to the Stated Case although he added that if there was any matter upon which further explanation might be sought by the Court, he would try to assist. Because of illness there was some delay in preparation of written submissions on behalf of the appellants but very full submissions were received by the Court on 7 February 2011.

[5] We think that the case does raise some, possibly difficult, questions about the role of the Commission and the decision-making process in relation to apportionment. We considered whether to request further submissions from the Commission or to put the case out for an oral hearing. However, we came to conclude that a decision on the wider issues was not necessary for the purposes of the present case. We have little doubt about the proper decision and have been able to deal with the matter simply by dealing with the stated Grounds.

[6] Before looking at the Grounds individually, it is appropriate to deal with the general submission to the effect that as the Commission have made no attempt to respond to the Grounds of Appeal or to challenge any of them, they ought to be taken to have acquiesced in the appeal.

[7] This is not the only Stated Case appeal which has given rise to difficulties and delay and we have had some concern about the apparent inability of the Commission to engage fully in the appeal process. We assume from the initial involvement of a third party solicitor that one problem is thought to be shortage of in-house specialist resources. However, it must be said that the essence of Stated Case procedure is that it is for the party which has made the decision to state the factual basis upon which they reached that decision and to explain what reasoning went into the decision. It is not easy to see how a third party would be expected to carry out that exercise. While the offer by the Commission’s solicitor to comment further if asked was plainly intended to be constructive, we might have expected the Commission to give some indication of their attitude to the appeal. However, as we have said the procedure by way of Stated Case has been changed and more explicit comment is unnecessary.

[8] It is plain that it is not for a lower court to justify its decisions on appeal. A decision must stand on its own feet, but, stand it will, until the superior court is satisfied that it falls to be corrected. The position of an administrative body such as the Commission is somewhat different. We have no doubt that a decision should stand until actively set aside but under the new appeal provision it is clear that Parliament expects the Commission to have an active role in the appeal procedure: sec 20(2) of the 2010 Act. A body such as the Commission acts in the public interest and would be entitled actively to defend its decisions even under stated case procedure. But it does not require to do so. The decision will stand unless the appeal court is satisfied that, for some reason, it must be set aside. In any event, it is important to recognise that, where there are respondents whose rights are directly affected and who actively oppose the appeal, any concept of acquiescence by the Commission would not take matters far. For the same reason, procedural shortcomings by the Commission cannot, in themselves, be a justification for a decision on the merits in favour of an appellant. The usual consequence of a finding of procedural error might be expected to be a remit for rehearing but much depends on the nature of the error. It might be quite easy to conclude that a particular procedural error had little bearing on the substantive outcome.

Grounds of appeal

[9] It may be said that the Grounds of Appeal follow the order and language of various heads of appeal set out in section 52A and purport to identify the failures said to fall under each head.

[10] The first is that, in the Stated Case, the Commission made a finding in fact upon which they did not have sufficient evidence to base that finding. The findings in fact by the Commission are all set out under para 1.22 of the Stated Case and we need refer only to the subparagraphs - which are labelled alphabetically. The finding criticised was part of finding (p), as follows: "Mr Ratter, on inspection, was not persuaded that the existing apportionment to Mrs MacKenzie is, as she has asserted, ‘useless’ for grazing purposes". The challenge to that finding is not taken on the narrow technical basis that the question of whether he was, or was not, persuaded of the adequacy of suitability for grazing is not itself a finding that the land was or was not suitable. Such a finding may be taken to be implicit. The criticisms are that no such assertion was made in the Crofters Commission’s initial Note of Decision and that they did not have evidence to base this finding.

[11] We are satisfied that these criticisms are without substance. It is public knowledge that Mr Ratter is chairman of the Commission. It is not disputed that the Commission had a local hearing. It is almost inconceivable that they did not inspect and, in any event, it is not suggested that there is any factual inaccuracy in the finding narrated. We are satisfied that in exercise of its functions the Commission were entitled to satisfy themselves on issues of fact in any reliable way. We are satisfied that they were entitled to have regard to the views of Mr Ratter on inspection and that there was no requirement to give an appellant an opportunity to comment on findings made by the Commission. She had already had an opportunity to express her views on the issue and give her evidence about the land in question.

[12] The fact that this particular point was not referred to in the earlier Note of Reasons is of no substance. It is the function of Stated Case procedure to allow the body at first instance to set out findings fully in response to specific Grounds of Appeal: see, for example, Parliament House Book, Rules of the Court of Session, 41.1.2. It is a procedure which is intended to allow for situations where the initial decision may not have included full reasons or full findings relating to specific points of challenge set out in the Grounds of Appeal. It is not suggested that Mr Ratter did not in fact carry out inspection or did not in fact take the view attributed to him. We have no doubt that the Commission were entitled to expand on their findings on this point when stating the case. It may be observed in passing that under the revised machinery for appeal, there will not be an opportunity to augment findings as to fact in the way contemplated by stated case procedure. The appeal will be based on the findings and reasons initially given.

[13] It may be noted that the conclusion which the Commission drew in finding (p) was that the appellant already had the exclusive use of land previously apportioned that she did not currently use to its potential for safely grazing her cattle. That finding is not itself challenged. It is also important to note that in the Stated Case the reference to Mr Ratter was given as an additional reason; that is, it was preceded by the word “also”. We return below to discuss the finding it followed - which was not challenged directly in any Ground of Appeal.

[14] Ground 2 is that the Commission took into account irrelevant or otherwise immaterial considerations. The basis for this is said to be the finding that the area applied for had potential for housing development as the larger part of it was within the Settlement Development Area in the Local Plan which was adopted in June 2006. The criticism is that the Commission go on to speculate as to the significance of this. It is suggested that they proceeded on the view that housing development was likely and that it should have primacy over agricultural use. The appellant argues that the zoning is indicative only for planning guidance and "does not suggest that any development may take place".

[15] We are not persuaded that there is material in the findings to support the criticism that the Commission’s decision depended on an implied finding that housing development was going to take place. Their discussion can be explained on the basis of a view that housing development might happen at some time. We find no basis for challenge of such finding nor for the contention that the Commission placed undue weight on it. It is plainly a relevant factor. We return to this issue - and to the Commissioner’s reference to the appellant’s declared intention to “exploit” the apportionment - under Ground 4. However, various preliminary points can be made.

[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). 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.

[18] But, in any event, we are not persuaded that the decision they were making required a preference for housing over agriculture. Their preference, expressed in finding(s), was that “the area should remain part of the common grazing … rather than become part of one shareholder’s croft". We note the submission that this “finding” had no apparent evidential basis but we are satisfied that it was a determination which could reasonably be made on the basis of the other findings. They found, for example, that other crofters did make use of the land in question. Although they were persuaded – partly on the basis of Mr Ratter’s inspection – that there was alternative land such crofters could use, the fact remains that such crofters currently have right to use the land proposed to be apportioned to the appellant.

[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.

[20] Ground of Appeal 3 is based on the proposition that the Commission failed to take into account what is described as "strong supporting evidence" from the Reporting Officer and SAC. However, the appellant provides no material supporting the contention that the Commission failed to take this evidence into account. On the contrary, the appellant points to the evidence as summarised in the Note of Decision and referred to there under the heading "Supporting Evidence". The findings in the Stated Case refer in plain terms to this material.

[21] We recognise that the expression "failed to take into account" is sometimes loosely used as if it meant "failed to give effect to". We are satisfied that there is no context in which the Commission were bound to give effect to anything said in such reports. The report were simply matters which the Commission had to consider and evaluate. In the submissions, it appears that this point is recognised in the alternative argument that the Commission failed to give this evidence "any significant weight". However, evaluation of such evidence was a matter for the Commission and we see no basis upon which we can conclude that they misdirected themselves in any way.

[22] The first report is typical of reports on apportionment prepared on behalf of the Commission by an Agricultural Officer employed by the Scottish Executive. It follows a standard style. It sets out various factual details about the grazing shares and the other shareholders. It notes that another crofter with a holding adjacent to the proposed apportionment has plans for building on it. It is reported that an attempt was made to discuss matters with that crofter who declined to visit at the time of inspection but, put shortly, made clear his objection. It may be observed that, in the section headed "Comments on the rights of others”, the Report notes only that part of the proposed apportionment had been used as an access to the township holding park from the public road. Any wider aspects of the rights of others may have been thought to be implicit in the whole question and therefore unnecessary to mention but, in any event, no mention of such rights was made. It is plain that the reporter did not see himself as attempting to balance the interests of the applicant against the interests of other parties. That was not the proper purpose of his report.

[23] The Report goes on to set out some detail of the applicant’s stated reasons for seeking the apportionment and provides detail of the reasons for refusal of a previous request for apportionment of the same area of land. But, if we read it correctly, the Report sets out only three comments or expressions of opinion by the reporter.

[24] Under head 14 he says: "It is considered that in the current application the provision for access to the township park is adequate. There are other areas, including the existing enclosed apportionments, that Murdo Macleod could use for feeding his sheep and there are alternative areas which could provide a house site for Scott Macleod."

[25] Under head 17 he says: "If the application is approved a souming reduction of the three sheep is recommended".

[26] Under the heading "Additional information" he sets out detail of the appellant’s proposal which is said to be that "the area would generally be used for a few animals at a time or possibly the whole herd for a short time". The reporter’s observation is that: "It is possible that with appropriate management the area could be used for grazing cattle for limited periods at certain times of the year without causing excessive poaching/soil erosion.” He also adds that the plans submitted with the application accurately show the area under consideration.

[27] It may be noted that in finding (c) the Commission accepted that the access was adequate for the needs of the shareholders and in finding (f) they accepted his final comment. There was, of course, no criticism of the Report. We see no basis for any suggestion that the Commission failed to take the Report itself into account. We do not think that the opinions expressed by the reporter could properly be regarded as “strong supporting evidence” from him. It might be said that the absence of negative comment in the report provided some support for the appellant but as we have said, the reporter, quite properly, was not attempting any balancing exercise.

[28] The Report from the SAC Business Consultant set forth his opinions in very general terms but provided no factual bases upon which such opinions could be tested. Such a report would not normally be thought to be a sound basis for assistance of a body such as the Commission. The Report referred to the need for "an apportionment in some shape or form". This can hardly be described as strong support for the specific area in question. The Report does not address the fact that the appellant already had an apportionment of 5.946 ha contiguous to the 3.49 ha in question.

[29] The Report says that the need for apportionment arises from the fact that without it the appellant is severely limited in her options for grazing her cattle and sheep. It is said that the apportionment was required to allow grazing rotation. In that context we note, in passing, that the Reporting Officer’s recommendation of a reduction in souming of three sheep, out of the applicant’s total of at least 119, hardly suggests that the area in question is of critical importance in relation to grazing. The appellant does not attempt to justify the apportionment as required for sheep. In assessing the weight to be given to the Report, the Commission would have been entitled to note that the expert made no attempt to identify any particular need for cattle; simply lumping cattle and sheep together. The Report is confused and confusing. In the penultimate paragraph, the apportionment is said to be "of benefit" in allowing "further management options" and that it would allow the appellant to manage stock numbers to provide maximum benefit to the local environment. Earlier he had said that without an apportionment in some shape or form welfare and safety issues might arise and that [if they did] this might result in the viability of the business being compromised. Nothing was said in the Report in justification of the jump from the view of the apportionment as a "benefit", or that absence of an apportionment “might” have consequences which might compromise the business, to the conclusion in the final paragraph where the apportionment is described as “essential” to allow the business to continue.

[30] We can see no fault in the Commission deciding that the Report, as a whole, was not entitled to determinative weight. The Commission may have used it as the basis of their finding (g) that it was "appropriate, if not necessary, for the appellant to have an apportionment to allow her to sustain and develop her crofting business of native Highland cattle and sheep". In our view they would have been entitled to treat the Report as adding little or nothing to the appellant’s case. It may be added that where a decision making body is being asked to rely on an expert’s report they are entitled to expect the expert to provide his reasons not simply his opinions. They cannot evaluate opinions without clear reasons.

[31] Ground of Appeal 4 is that the Commission exercised their judgement in an unreasonable manner. It was said that they allowed their judgement to be led by speculation as to a theoretical yet entirely unintended use of the land. We do not consider that a fair criticism of the decision, taken as a whole. We accept that the comment, in finding (l), by the Commission that the appellant’s "declared intention was to fully exploit the area if apportioned" is capable of indicating a view by the Commission that the appellant was prepared to exploit the land for development if a suitable occasion arose and if that was likely to prove more rewarding than use for her agricultural enterprise. The comment was made in the context of discussion of such development. But the Commission do not set out their findings on the basis of an assumption that she intends to develop and it can hardly be imagined that they concluded that the appellant meant to declare openly that she had an intention to build or sell the land for building. Her whole case was that she intended to use the land for her cattle business. They expressly said, "There was no evidence of any imminent proposed development by any person of any part of the area applied for". They said that they should have regard to the future interests of "all the shareholders and their respective statutory successors". This makes it clear that their interest was for the long term. They did point out that the land was identified for development and that it had a roadside frontage of about 300 metres. They were, in our view, plainly correct to recognise a potential value for development. But they went on to consider the appellant's agricultural requirements. They concluded as the first finding in (p) that there were other alternative areas for apportionment which would be "suitable and adequate for the appellant's crofting purposes". This finding was not challenged. The decision did not turn on any finding as to the appellant's intentions. Implicit in the decision is the recognition that the potential for development increased the value of the land and their view that this increase should be preserved to be shared among the other grazing shareholders.

[32] We are not persuaded that any of the stated Grounds of Appeal is well founded and the appeal must, accordingly be refused. We formally answer all four questions in the negative.

Some wider issues

[33] We think it appropriate to mention some doubts about the wider issues and the nature of the Commission’s role. These comments should be read as restricted to applications for apportionment and as intended to invite further submissions in any future case. Put shortly, however, we are not satisfied that the Grounds, as stated, dealt adequately with the nature of the issues to be addressed. In the Grounds and the Written Submissions the appellant makes no attempt to deal with the underlying question of what criteria the Crofters Commission should apply when considering whether or not to grant an apportionment. There is no attempt to identify the test we are to apply in considering whether the decision should be set aside. For example, whether we were bound to set it aside if we thought that they had taken account of something which should not have been considered or were entitled, if not bound, to look at the decision as a whole and consider whether it was one which the Commission could reasonably have made.

[34] When considering the nature of the task of the Commission when determining an application for apportionment, it is important to note, at the outset, that, although the 2007 Act provided a right of appeal against decisions of the Commission, including decisions in relation to apportionment, it did not make any changes to the nature of the substantive rights of interested parties. Provision of a mechanism for appeal does not necessarily create any new substantive rights. It is important to recognise that an applicant for apportionment has no special right in any particular part of the grazings and we doubt whether it could seriously be argued that they acquire substantive rights merely by making an application. In particular, we think it clear that no rights are acquired by showing that they would be expected to make good use of the land or showing that they require the land in order to run their croft efficiently, or by showing that they would make better use of the land than any other shareholder. The circumstances are unusual in that the only parties with relevant rights in the land in question are the respondents who face loss of the land. The applicants grazing share gives no positive right. It may be that this means that the Commission need not carry out a fine balancing exercise but are entitled to exercise a very broad discretion.

[35] The fourth Ground, asserting that the Commission exercised their discretion in an unreasonable manner, was not supported by any reference to authority and it may be assumed that it was stated simply on the basis of the language of section 52A(3)(f). However, the statutory language suggests an implicit reference to the concept which has come to be known as "Wednesbury unreasonableness" first discussed in Associated Provincial Picture Houses v Wednesbury Corp. [1948] 1 KB 223. We think it makes it plain that we have to consider the scope of discretion and we are satisfied that this Court could not simply substitute its own view of what would be reasonable. The Commission have to be found to have acted “in an unreasonable manner”.

[36] We recognise that what may initially be referred to as an unreasonable approach or "Wednesbury unreasonableness" is often found, on examination, to exist in circumstances where an inference of some error of law or reasoning can, in fact, be identified. A test based simply on the proposition that no reasonable authority could possibly have reached the decision in question may seldom be required. However, in the case of a decision on apportionment which does not involve any balancing of rights but the taking of rights from some parties to give new rights to another, it is not easy to see how the exercise of discretion can be defined other than by some reference to a concept of overall reasonableness. For example, a decision which may have included reference to some fact not soundly based in evidence might still be a reasonable decision.

[37] As stressed at the outset, we limit our comments to the question of apportionment. There may be other decisions to be taken by the Commission which share some of the same characteristics but there are features of such a decision which might suggest that we should not interfere with it unless satisfied that it is so unreasonable that it must be set aside. The important feature is that it relates to land in respect of which an applicant has rights which are shared with others. The applicant has no right to apportionment and no priority of right in the particular land. Indeed it may be noted that the Act does not purport to convey any specific rights on an applicant. The application is referred to simply as part of the trigger mechanism allowing the Commission to reach a decision on whether or not to apportion. It is not expressed in terms of a right given to a party to apply for an apportionment. Although we doubt whether anything would turn on the precise way in which the matter is framed, we think that the language does reflect the importance of the discretion vested in the Commission. It does seem clear that the role of the Commission in relation to the apportioning of part of a common grazings can be characterised as being, essentially, an administrative function rather than a judicial one although the full implications of such distinction are less clear.

[38] Although we have touched on the matter above and the Commission deal briefly with it at finding (k), it is perhaps worth re-stating some of the implications of a grant of apportionment. If an applicant is given land as an apportionment others will lose their rights in that land. Where the only relevant use in question is for grazing it may be sufficient compensation that the applicant will lose an equivalent share of grazing rights in the rest of the common grazings. But where the apportionment has a potential value different from other parts of the grazings, other issues arise. That value might be directly financial as where the land in question has hope value or might simply provide a particular agricultural value, as for example, being close to good access facilities, water, or the like. Once a person is given an apportionment it effectively becomes part of their croft. They will be able to buy it at an agricultural rental value. They will then be in a position to realise the full amount of any development value. Even if they do continue to use it for agricultural purposes, they will hold the increased hope value as an asset. On the other hand, if there is no apportionment, all the crofters retain their existing rights and a right to share in any increase in value if proposals for development emerge.

[39] Such proposals would have to come from the owner. If the existing owner wishes to develop the land for housing he will be able to resume the appropriate area under section 20 and the crofters will share half the development value: section 21(1). If he wishes to sell, he can sell to anyone he chooses. That person would be entitled to seek to resume for development which would, in turn, trigger the rights of the shareholders in half the development value.

[40] These factors are implicit in the present case. They were clearly recognised by the Commission. While it may be possible that they placed more weight on the risk or prospect of development than others might have done, there is no doubt that the prospect was relevant. It may be thought that not much more needed to be said to justify a decision not to make any apportionment.

[41] It was contended in one of the original Grounds of Appeal that the mere fact of objection was irrelevant. It was for the Commission to determine what force was to be given to an objection. These Grounds were, of course, changed and we have dealt above with the current Grounds. However, it is worth noting that such a contention raises, implicitly, the question of onus. Which side has to demonstrate the weight to be given to reasons for objection? Although Parliament made provision requiring the Commission to consult the grazings committee, it made no provision of any other specific matters to be taken into consideration. However, the fact of objection from another shareholder seems to us to be a factor which the Commission had to consider. If they concluded that the objection was based on considerations wholly unrelated to land use or land value, it might have little or no weight but we are not yet persuaded that a simple objection from a person who would lose their rights in the land could be disregarded because it was not shown to be supported by sound reasons. It may be that it would be enough to say the shareholders should not lose rights without good cause.

[42] However, it is unnecessary for the purposes for the present appeal to express a concluded view on any of these issues.

The possibility of a conditional grant

[43] The appellant contended that the Commission could have dealt with the risk of development for housing by imposing conditions or making a grant for a limited period in terms of sec 52 subsections (6) or (10). However, it is not obvious to us that either provision would meet the point. Had they been considering whether to make such a grant the Commission would have had to decide what effect, if any, imposing conditions on a grant of apportionment would have on the operation of sections 12 and 21(1). We have heard no submissions addressed to such issues and make no comment upon them.

[44] Taking the decision as a whole, it is very far from clear that the Commission would have regarded a restricted grant as appropriate. As we have said, they made an explicit finding that there were other alternative areas which would be suitable and adequate for the appellant's crofting purposes. We have considered whether to exercise our power under section 52A to remit to the Commission to consider this further. However, we have decided that the appropriate step is simply to refuse the appeal. It should be noted, in any event, that sec 40 of the 2007 Act is to the effect that nothing in the Act is to affect an application made before the section came into force. There is, accordingly, at least a doubt as to whether the Commission could grant an apportionment of limited duration in respect of the application which is before us. Further, the Commission's decision and their consideration of the whole issue of apportionment was directed at an application for unqualified grant and was based on a hearing in 2008. We consider that any decision as to conditions or restricted duration would be something which would need fresh appraisal.