DIVISIONAL COURT

(Sheriff MacLeod)

STEWART v THE CROFTERS COMMISSION

(Application RN SLC/83/08 – Order of 25 March 2009)

CROFTING – APPEAL AGAINST REFUSAL OF CONSENT TO ASSIGNATION

The tenant of a croft at 6 Fearnamore, Applecross, applied to the Crofters Commission (“the Commission”) for consent to assign the tenancy of the croft to the appellant, who was tenant of another croft in Fearnamore. After advertisement of the application and enquiry the Commission refused consent on the grounds that there was other serious interest in the tenancy and that it would be better for the township if a new crofter obtained the tenancy. The appellant appealed on the grounds that the Commission had (a) made a material finding in fact (that there was other serious interest in the tenancy) on the basis of insufficient evidence, (b) taken into account irrelevant or immaterial considerations, (c) failed to take proper account of certain relevant and material considerations, and (d) exercised its discretion in an unreasonable manner. The Court refused the appeal.

The Note appended to the Court’s Order is follows:-

[1] This is an appeal by stated case under sec 52A of the Crofters (Scotland) Act 1993 (“the 1993 Act”) against a decision of the Crofters Commission (“the Commission”) dated 13th March 2008 refusing consent to a proposed assignation of the tenancy of a croft at 6 Fearnamore, Applecross, by the tenant, Mr Alister Waterston, to the appellant under sec 8(1)(b) of that Act. The application for consent (a copy of which is production 3) was made to the Commission by application dated 6th June and 6th October 2006.

The appellant

[2] The appellant is Dr Mark Stewart, who at the time of the application lived at Corallin, Fearnamore, but has since moved to Applecross. He was at the material time and is still the tenant of a croft referred to in the Commission’s documentation as Fearnamore (RO122), which has an apportionment. Dr Stewart keeps a fold of Highland cattle and is interested in developing it, together with some rare breeds, poultry and game, as instruments of biodiversity and land regeneration. He also operates a holiday house letting business in the area.

The township of Fearnamore

[3] Fearnamore is situated on the Applecross Estate and the landlords are the Applecross Estate Trust. There are eight crofts in Fearnamore but only seven were tenanted at the time of this application. Of the seven tenants only two, including Dr Stewart, were then resident in the township. Only three tenants keep stock. The land is not cultivated and has remained unchanged for 30 years. Little in the way of improvements has been carried out over that time. A re-casting of the crofts was proposed some time ago and was on the point of being implemented as long ago as March 1999 (production 1) but has still not been implemented. Each croft has a share in the township common grazings. Three of the shareholders have participated in a Crofter Forestry Scheme on part of the grazings. Dr Stewart has not, preferring to pursue biodiversity on his apportionment.

How the Commission dealt with the application

[4] The application for consent was received by the Commission on 13th October 2006. On 26th October a notice of the proposed assignation (a copy of which is production 16) was sent by the Commission to the Fearnamore Grazings Clerk for him to display in the local Post Office. Three responses were quickly elicited; one from a Ms Muirne Buchanan, dated 2nd November, one from a Mr Donald MacLeod Johnston, dated 8 November, and one from a Mr Jonathan Hedges, sent to the Grazings Clerk rather than the Commission, on 17th November 2006. A number of responses in the way of objections were also received by the Commission, including an adverse response from the Fearnamore Grazings Committee following a meeting held to consider the proposed assignation on 6th November 2006 (production 6 is a copy of the Minute of that meeting and of the completed questionnaire returned to the Commission following it). A common theme of the objections is the perception of Dr Stewart as being difficult and obstructive and pursuing a separatist, non-communal model of crofting at odds with notions of joint enterprises and communal activity.

[5] Over the following eleven months various enquiries were carried out by the Commission and various representations were made to them. The investigations included obtaining a report from an officer of the Scottish Government Rural Payments and Inspections Directorate (“SGRPID”) who, we assume, visited the interested parties, and whose subsequent report (not produced) appears to have formed the basis of a document called “Summary of Case”, a copy of which is production 4. It is dated 30th October 2007. That Summary was, according to the information it contains, forwarded to the Commission’s Regulation Manager and Chairman for a decision. They must have felt unable to decide the application on the information before them and instead directed that a hearing should take place. That hearing was held on 14th February 2008, we assume in Applecross or at some other convenient and reasonably local location, although no report of it is with our papers. A report of it was, however, made to a subsequent meeting of the Commission on held on 13th March 2008, when the decision under appeal was taken.

Preliminary procedure in the Land Court

[6] When the Court received the stated case from the Commission we considered that it did not adequately disclose how and why the Commission had arrived at its decision and in particular did not identify the material upon which it had relied in doing so. We therefore issued an Order on 5th February 2009 appointing the Commission to lodge “a statement of the reasoning on which their decision was based and identifying the material, in the way of representations made to them or information otherwise available to them, on which they relied”. That was subsequently provided in the form of a letter dated 23rd February. The appellant has been given the opportunity of commenting on that letter and has done so in his letter to the Court of 6th March 2009 in the course of which he also says, in response to a request from the Court as to whether he was content to have the appeal dealt with on the basis of the written material, that he leaves it to the Court’s discretion as to how the appeal should proceed. Being satisfied that we can properly deal with the appeal on the material available to us and without a hearing, we have proceeded to do so.

[7] In the course of considering the appellant’s first ground of appeal, which we come to at paragraph [12] below, we had further cause to revert to the Commission. This was in relation to the appellant’s challenge to the Commission’s finding that other realistic interest in the tenancy of the croft existed, the appellant averring that “no expression of interest was made at an earlier date, when the assignation and improvements were publicly advertised for sale”. No mention of such earlier advertisement appears in the Commission’s deliberations. We considered that this may be an important point in relation to the Commission’s said finding and wrote to the Commission on 12th March for clarification. Its reply of 16th March explained that if the assignation application was advertised earlier the Commission was unaware of that. Said letter also make the point that in the application for consent to the assignation (production no 3) Mr Waterston had indicated, at question 7, that the assignation had not been advertised.

[8] It will be apparent from the foregoing narrative of events and from comments made below as to the paucity of findings in fact in the stated case that there were a number of ways in which the stated case submitted to us was deficient. Stated Case procedure is new to both the Court and Commission and both are, therefore, on something of a learning curve as to how such appeals should be dealt with. We considered whether to return the stated case to the Commission so that these deficiencies could be made good but decided that we could find the relevant material for ourselves from the accompanying documentation submitted by the Commission and that we should proceed on that basis in order to avoid further delays in a case which has already taken a long time to be dealt with. What we will do, however, is issue separate guidance on the form and content of stated cases to the Commission for its assistance in future cases. In fairness to the person who prepared the present case (in so far as not comprising matters drafted by the appellant), he is not a lawyer and seems to have had only limited access to or assistance from the external solicitors the Commission uses to scrutinise such appeals.

The relevant law

[9] The application for consent having been made in 2006 the applicable provision of the 1993 Act is sec 8 unamended by the provisions of sec 12 of the Crofting Reform etc Act 2007 (“the 2007 Act”). Sec 8(4) provided as followed:-

“In considering any application [for assignation] the Commission shall take into account the family and other circumstances of the crofter and of the proposed assignee of the croft and the general interests of the township in which the croft is situated.”

The Grounds of Appeal

[10] The appeal is taken on the grounds that the Commission (a) had insufficient evidence on which to base findings in fact material to its decision; (b) took into account irrelevant and immaterial considerations; (c) failed to take proper account of relevant and material considerations; and (d) exercised its discretion in an unreasonable manner. These correspond to the grounds set out in sec 52A(3)(b),(d),(e) and (f) of the 1993 Act.

[11] The statement of grounds of appeal contained in the stated case is set out in two parts; Part I and Part II. As we understand it, although it is not entirely clear, Part I deals with the first ground of appeal only – the making of a material finding in fact on the basis of insufficient evidence – and Part II with everything else.

The sec 52A(3)(b) ground – making a material finding in fact without sufficient evidence

[12] The “finding in fact” which is challenged under this head is, as framed in the grounds of appeal, “that realistic new crofting interest has been expressed”. That does not in fact appear as a finding in the stated case (there are very few findings in fact in the stated case and none on the critical aspects of the case) but it is an accurate paraphrase of what is said in the Commission’s letter of 17 March 2008 (production 5) informing Mr Waterston of its decision to refuse the application. The existence of any such demand was a matter to which, in our view, the Commission was obliged to have regard as part of its consideration of the general interests of the township in which the croft is situated, in terms of sec 8(4).

[13] The appellant does not dispute that interest has been expressed in this tenancy; his attack rather is on the credentials of the person who appears to be his principal competitor, if we may put it like that, the said Ms Muirne Buchanan. What he is saying is that the Commission was not entitled, on the evidence before it, to treat her interest as “realistic”. The grounds upon which the appellant himself challenges the credibility of Ms Buchanan’s interest may be summarised as follows:-

(i) That it has not been shown that she could afford to take over the permanent improvements on the croft.

(ii) That it has not been shown that she would be proposed as an assignee by Mr Waterston.

(iii) That she did not express interest in the tenancy when it was originally advertised for sale (as the appellant seems to aver it was).

(iv) That, in as much as Ms Buchanan has a home and crofting enterprise in another township, there is little prospect of her becoming a “committed resident” of Fearnamore.

(v) That Ms Buchanan, whom the appellant describes as presently assisting with “sheep ranching activity” in the township, is likely to favour the continued use of the township as “a satellite area for grazing by non-resident tenants”.

(vi) That, given a history of opposition to assignations from long-term tenants (we take this to be a reference to proposed assignations to people without a connection to Fearnamore), there is a possibility that Ms Buchanan’s interest is merely a strategic move to protect the status quo.

[14] The appellant goes on in this part of his grounds of appeal to mention his hope, should he obtain the tenancy, of being assisted in his crofting enterprise by his nephew and the possibility of assignation of the tenancy to this nephew in due course but that is not relevant to the question whether the Commission had before it sufficient evidence of realistic interest in the tenancy apart from the appellant’s interest. Likewise the appellant’s reference to Ms Buchannan having close personal ties to the Cameron family is irrelevant.

The evidence of interest which was before the Commission

[15] As we have seen, Ms Buchanan was not the only person to express interest in this tenancy. The letter received from Mr Donald Macleod Johnston (a copy of which is production 11), which simply called for the croft to be returned to his family, was followed by an expression of interest in acquiring the tenancy by his brother, Mr Bill Johnston, who lives in Airdrie but is the grandson of the person who assigned the tenancy to Mr Waterston. Since it is however clear from the Commission’s said letter of 23rd February 2009 that it regarded only Ms Buchanan and Mr Hedges as serious alternative candidates for the tenancy we will say no more about Mr Johnston’s interest.

[16] Production 7 is a copy of Ms Buchanan’s letter of 31st 2006 to the Commission expressing her interest in obtaining the tenancy. In it she says that she first wrote to the Commission in March 2003 expressing an interest in obtaining a tenancy on the Applecross peninsula under the Croft Entrant Scheme. Her address is in the nearby village of Arinacrinachd and she says that she has lived there for more than 10 years, that she runs her own business (unspecified), that she is also relief postwoman for Applecross, Shieldaig and Kishorn and that Lorna Lumsden, Applecross Estate Administrator, would support her application.

[17] Production 8 is a copy of Mr Hedges’ letter to Mr Owen Kilbride, as Clerk to the Grazings Committee, dated 17th November 2006, expressing an interest in the tenancy. It was received by the Commission from Mr Kilbride on 27th November 2006.

[18] Production 4 is a copy of a “Summary of Case” document prepared by one of the Commission’s Casework Officers, Mr Alister M Beaton, and is dated 30th October 2007. It is a summary of the information thought relevant to the decision the Commission had to make. It deals with Ms Buchanan’s and Mr Hedges’ interest at paragraphs 3.11 and 3.12 respectively, in the following terms;-

“3.11 Ms Muirne Buchanan has written expressing interest in obtaining the croft tenancy. The reporting officer has advised that Ms Buchanan has lived locally at Arrina for 11 years where she operates a stained glass/craft work shop and gallery. She also has experience in sheep husbandry as she assists a local crofter with winter feeding and at sheep gatherings. This year she worked on east coast farms as a lambing assistant. In one instance she carried the ‘night shift’ looking after 650 ewes. She would be very keen to gain access to a croft tenancy in the Applecross Area to allow her to develop her crofting interests.

3.12 Mr Jonathan Hedges has written expressing interest in obtaining the croft tenancy. The reporting officer has advised that he is married with a family of three and until recently lived in the nearby township of Cuaig for 7 years. He works as an estate worker but also operates a firewood and grass cutting business. His house in Cuaig has been sold and he currently resides in Applecross village. He has tried to obtain the tenancy of a croft in the area but has been unsuccessful and may now require to investigate elsewhere.”

[19] The other thing to note from this Summary relative to the interest of Ms Buchanan is that, at paragraph 3.19.5, it says that Mr Waterston does not want to assign his croft to Ms Buchanan. No reason is given. Mr Waterston is not recorded as commenting on Mr Hedges’ interest.

[20] That was the evidence available to the Commission and it is clear from their said letter of 23rd February 2009 that they formed the impression that the interests of Ms Buchanan and Mr Hedges represented “suitable demand” for the tenancy. The appellant in his letter of 6th March 2009 says that Mr Hedges had in fact left the area some time before the Commission reached its decision on the assignation but, if so, that information appears not to have been available to the Commission when it arrived at its decision.

[21] The question for us is whether that evidence provides a sufficient basis for the Commission’s decision that there was other realistic interest in the tenancy.

[22] So far as the appellant’s criticisms of it are concerned we would comment as follows:-

(i) That it had not been shown that Ms Buchanan could afford to take over the permanent improvements on the croft

The appellant says that the permanent improvements have “considerable value”. He refers to what we take to be a valuation report from Messrs Souter & Jaffrey dated 22nd August 2007 in support of that view. We have not seen that report nor does it appear to have been before the Commission, whose information, from their Reporting Officer, was as follows (Summary of Case, paragraph 3.3);-

“According to the Register of Crofts the croft extends to 1.01 ha arable and 0.810 ha outrun. The reporting officer has advised that the croft consists of an area of unfenced runrig land and an apportionment. He could not confirm the exact position and extent of the runrig could not be identified. The croft has one share in the Fearnamore Common Grazings. The reorganisation scheme identified an area extending to 9.6133 ha of former runrig land to be associated with this croft. There has been no progress made on the enclosure of this land. There is a ruinous croft house which is unfit for habitation. An apportionment extending to 0.252 ha was granted on 21 May 2002 which is enclosed by a stock proof fence. The apportionment surrounds the croft house and small byre which is in need of refurbishment. The land is of very limited agricultural potential due to rock outcrops. The value of permanent improvements on the croft is very low.”

The extent to which the Commission ought to concern itself with the financial standing of candidates when assessing whether there is credible alternative interest in a croft tenancy may be a moot point. Financial assistance of various kinds may be available to a crofter. In the present case Ms Buchanan’s application makes mention of her intention to rely on the Croft Entrant Scheme. The Commission is, of course, well aware of what assistance is available. In this particular case both Ms Buchanan and Mr Hedges explained to the Commission how they made their livelihoods and, that being so, we do not think that there was anything before the Commission which ought to have led it to discount the interest of either candidate on the ground of lack of financial capacity to acquire the assignation.

(ii) That it had not been shown that Ms Buchanan would be proposed as an assignee by Mr Waterson.

We regard this as irrelevant. An intending assignor is of course entitled to take the stance that he is interested in assigning the tenancy only to the intended assignee but the Commission has to look not only at the circumstances of the assigning crofter but at the general interests of the township. The assignor’s wishes do not therefore operate as a veto on the Commission’s consideration of what other interest there might be in the tenancy, nor on the relevance of any such interest. The intending assignor cannot hold the Commission to ransom in that way.

(iii) That Ms Buchanan did not express interest in the tenancy when advertised for sale

We would certainly have expected failure to express interest when the assignation had first been advertised as a matter which would have required the Commission to question the seriousness of the interests which emerged once it became known that Dr Stewart was the intended assignee. But the Commission had information before it from the assignor himself (see paragraph [7] above) which said that the assignation had not been advertised. That was clearly the basis on which they proceeded and in our opinion they were entitled to do so.

(iv) That there was little prospect of Ms Buchanan becoming a committed resident of Fearnamore

Becoming a committed resident is not the same thing as being a potentially suitable candidate for the tenancy and one would not have to be committed to living in the township in order to be seriously interested in acquiring the tenancy. Although in terms of the interests of the township it would be desirable that the new tenant was committed to living there, not intending to do so is not an absolute barrier to acquisition of the tenancy. In that connection we observe that even the more specific conditions set out for non-family assignations in sec 8(2) of the 1993 Act as amended by sec 12 of the 2007 Act allow for the intended assignee living up to 16 km from the croft.

(v) That Ms Buchanan is likely to favour the continued use of the township for the grazing of stock from satellite townships

This objection is more to Ms Buchanan’s suitability as a potential assignee than to the seriousness of her interest, although it may be that the two things cannot be entirely kept apart when one is assessing credible alternative demand. The Commission had before it information from Ms Buchanan, which it could verify from its own records, to the effect that she had first written to the Commission about acquiring a croft on the Applecross peninsula in March 2003. Accordingly it appears that Fearnamore was by no means the only township in which she was interested. More generally it does not appear to us that there was any substantiated information before the Commission requiring it to question the good faith of Ms Buchanan’s interest in the croft.

(vi) The possibility that Ms Buchanan’s interest was only a stratagem for preserving the status quo

This is no more than speculation on the appellant’s part. Again we are satisfied that there was nothing before the Commission requiring it to doubt Ms Buchanan’s good faith.

[23] We are therefore satisfied that there was adequate material before the Commission to entitle it to make the finding that there was other serious interest in the tenancy of the croft and this ground of appeal, therefore, fails.

The sec 52A(3)(d) and (e) grounds) – taking into account certain irrelevant or immaterial considerations; failing to take into account certain relevant or material considerations

[24] The principal thing with which issue appears to be taken in this section of the Grounds of Appeal is the Commission’s assertion that the assignee’s current business will not be affected by failure to acquire a second croft. Again the relevant “finding” is to be found in the Commission’s decision letter of 17th March 2008, where it is said that:-

“The proposed tenant already has one croft and his current business and will not be affected by the lack of obtaining a further croft tenancy.”

[25] The effect, if any, on a proposed assignee’s current business is plainly a relevant and material consideration given the Commission’s statutory obligation to consider the circumstances of the proposed assignee. What the appellant is challenging is the veracity of the Commission’s conclusion on that matter. The appellant explains that because of the pending croft re-casting proposals he has a croft in name only; that the proposed new croft (i.e. the croft which will be his if these proposals are implemented) will be water-logged and unsuitable for cattle; that his present operations are restricted to “a small acre apportionment” surrounding his home whereas the assignation, were it to go ahead, would afford him the basis for an apportionment which would allow him to develop his plans for his fold of Highland cows, land regeneration and a biodiversity project. These plans apparently have the imprimatur of a senior SEERAD (as was) manager who is said to have described them as “visionary” and of a representative of Applecross Estate Trust who has apparently said that they have “much merit”.

[26] That the Commission were aware of the nature of the appellant’s businesses and of his plans for 6 Fearnamore, were he to get it, is clear: these matters are all set out in paragraphs 3.4 to 3.7 of the Summary of Case.

[27] While the relevant part of the Commission’s decision letter is not happily worded in as much as it says that the proposed tenant, rather than the proposed tenant’s present business, will not be affected by the lack of a further croft tenancy, we have no doubt that, fairly read, what it means is that failure to get another tenancy will not prevent the proposed tenant from carrying on his present business. We say that because plainly any failure on the part of any proposed tenant to secure a tenancy is going to affect the person in question in terms of disappointing his expectations and frustrating such plans as he may have for the tenancy. The reference to the appellant already having one croft and his business (which we take to be a reference to his holiday letting business) makes it clear enough that what is meant is that the appellant can carry on as he presently does even if he does not get the additional tenancy: his future plans will be disappointed and, at best, delayed, but his present operation will not have to be abandoned or even curtailed. The appellant’s challenge therefore seems to us to proceed on a misunderstanding of what the Commission meant, although certainly not on a misreading of its letter.

[28] So far as the effect of the recasting scheme on Dr Stewart’s present croft and the knock-on effect of that on his business were he not to get the tenancy of 6 Fearnamore is concerned, that matter does not appear to have been taken into account by the Commission. We do not know whether Dr Stewart put that point to the Commission before it made its decision: there is no record of that being done in the papers. But however that may be, it is clear that the re-casting scheme is presently at a standstill and, as we understand it, it remains to be seen whether it will ever be implemented. In that situation it would have been inappropriate to attach much weight to how things might stand at some uncertain date in the future when deciding whether to grant consent to the assignation of the tenancy of 6 Fearnamore now. Accordingly we do not consider that we are required to disturb the Commission’s decision on the ground that it appears not to have taken this particular matter into account.

[29] Apart from the question as to the Commission’s failure to consider the effect of the re-casting scheme, there remains the question whether the Commission has failed to take proper account of the impact of their decision on the appellant’s future plans, that also being a relevant consideration for the Commission.

[30] The Commission was plainly aware of these plans; they are outlined in the section of the application for consent completed by Dr Stewart and summarised at paragraph 3.5 of the Summary of Case. It is also clear that the Commission was favourably impressed by them: its letter of 23rd February 2009 states “Dr Stewart would make good use of the croft, as evidenced by his completion of the section the application form available to the proposed assignee and the SGRPID officer’s comments in his report” and, later on, “… it was accepted that Dr Stewart would make good use of the croft …”.

[31] Whether the Commission gave adequate weight to the effect of refusal of consent on Dr Stewart’s future plans is for discussion in the next section of this note but, on the basis of the material just referred to, it does not seem to us that it can be said that the Commission either took irrelevant or immaterial considerations into account or failed to take account of relevant or material matters.

The sec 52A(3)(f) ground – exercising discretion in an unreasonable manner

[32] Whether to grant consent was plainly a matter for the Commission’s discretion. That is a role committed to it by Parliament. Discretion has to be exercised “according to the rules of reason and justice, not according to private opinion … according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular” (Lord Halsbury LC, Sharpe v Wakefield [1891] AC 173 at 179). When the exercise of discretion is being challenged on the ground of unreasonableness what the challenger has to establish is that the decision in question “is so unreasonable that no reasonable authority could ever have come to it” (Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230).

[33] Our task is not, therefore, to ask whether we would have come to the same decision as the Commission or to substitute in any way our assessment for that of the Commission but to decide whether the Commission’s decision was unreasonable in the foregoing sense.

[34] In coming to its decision the Commission was bound to take account of three things; the assignor’s circumstances, the intended assignee’s circumstances and the general interest of the township in which the croft is situated. That does not mean that it had to accord equal significance or weight to each of these. In most cases the general interests of the township will carry more weight than the other two. That is how the Commission approached this case as its letter of 23rd February 2009 makes clear:-

“In considering this evidence, the Commission was consequently faced with the question:

How far would the general interest of the township be served or disserved by Dr Stewart holding the tenancies of 2 crofts as against the tenancy of croft 6 being held by another local person with no current croft tenancy?”

In the present case Dr Stewart argues that the Commission came to an unreasonable decision on that question.

[35] As we have demonstrated in the preceding section of this Note, it is clear that the Commission was favourably impressed by Dr Stewart’s ability to put land of this kind to good use and with his plans for doing so. Had the only question been “who would make best use of croft 6?” the application would have had to be granted. It is hard to imagine anyone utilising and improving the land more effectively than Dr Stewart has already proved he can do. But although that is one question the Commission could ask itself (and in our view did ask itself) it is not the only question. The Commission, as well as considering the highly important matter of land use, had to consider wider issues and take an overall view of the interests of the township.

[36] The Commission’s reasoning in arriving at the decision that the best interests of the township required it to refuse the application is set out in its letter of 23rd February as follows:-

“While it was accepted that Dr Stewart would make good use of the croft, the conditions of the township with few active crofters suggested strongly that a greater number of active crofters would be highly desirable.

Although the prospect of apportionment extinguishing the croft share would arise only were the assignation approved, nevertheless it was evident from his premature apportionment application that were he to become tenant of croft 6, Dr Stewart intended to apply to apportion the full extent of both the share of his current croft and that of croft 6. Were that application to be successful – and the Commission could not at that point take a view on such an application – he would not be able to participate in any joint township enterprises such as crofter forestry. This would reduce the potential for enhancing the general township interest.

Having considered these questions, the Commission took the view that the introduction of a new crofter to the township through assignation of croft 6 would serve the general township interest to a greater extent than approval of the assignation to Dr. Stewart. Consequently, the application was refused.”

[37] That seems to us to show a very clear focus on the interests of the township. As part of that the Commission was in our view entitled to take account of how the township might function as a community and of the desirability of crofters participating in joint enterprises. Dr Stewart avowedly has no interest in taking part in the joint forestry scheme and doubts whether this particular township has the potential for communal development (paragraph [4] of his letter to the Court of 9 March 2009). He may very well be right in his doubts but the whole point of the Commission’s approach, it seems to us, is to try and bring about a situation in Fearnamore where that might be possible. That is a legitimate aspiration even if present indicators are not promising.

[38] Reverting to what we said at paragraph [31] about whether the Commission gave adequate weight to Dr Stewart’s future plans and the effect on these plans of refusal of consent to the assignation, we think that it is plain from the foregoing passage from the letter of 23rd February that it did so. Dr Stewart’s plans for the croft and his proven ability to carry them through were the big factors in favour of the assignation being allowed to go through. Without them there would be nothing to be said in favour of giving him a second croft and, consequently, no very difficult balancing exercise to be carried out by the Commission. Instead, what we see is a careful approach on the part of the Commission and a difficult balancing act being performed. What brought the Commission to the point of having to carry out such an exercise was the weight it attached to Dr Stewart’s plans for the croft.

[39] In our view this was a delicately balanced application. It could have gone either way. The Commission decided that it should be refused and has explained that conclusion. There is, in our view, nothing unreasonable about either the decision or the reasoning and there is certainly no unreasonableness of the kind required in order to justify the recall of the Commission’s decision.

Answering the questions in the stated case

[40] The questions contained in the stated case are as follows:-

(1) On the basis of the Statement of Facts set out at 1 in this Stated Case, did the Commission make a finding material to the decision, determination, direction or imposition but did not have sufficient evidence on which to base that finding?

(2) On the basis of the Statement of Facts set out at 1 in this Stated Case, did the Commission take into account irrelevant or immaterial considerations?

(3) On the basis of the Statement of Facts set out at 1 in this Stated Case, did the Commission fail to take into account certain relevant or material considerations? and

(4) On the basis of the Statement of Facts set out at 1 in this Stated Case, did the Commission exercise its discretion in an unreasonable manner?

Had we confined ourselves to the Statement of Facts set out at 1 of the Stated Case it would have been impossible for us to answer any of these questions, because it contains no findings in fact which are of any assistance. However, having managed to establish, by a combination of perusal of the papers lodged by the Commission as productions and reverting to the Commission for additional information, the material facts relied upon by the Commission to our own satisfaction we shall answer all four questions in the negative and, in terms of sec 52A(4)(a) of the 1993 Act, confirm the decision of the Commission.

For applicant: Party

For Respondents: D I Smith, Solicitor, Crofters Commission