Decision of the Scottish Land Court

Ylenia D’Angeli (Appellant) v The Crofting Commission (Respondents)

Case reference SLC 87/15
before
Lord Minginish, Chairman, and John A Smith
15 September 2016

[1] This appeal, which originally concerned two crofts – Sodom and Whitefield – on the Island of Whalsay, Shetland, was brought against decisions of the respondents dated 19 August 2015 not to grant consent to the division of these crofts under sec 19D of the Crofters (Scotland) Act 1993 (“the Act”).

[2] The pro-forma application forms used by the appellant when she applied for consent refer, confusingly, to owner-occupiers and also to sec 9 of the Act – which is for applications by crofting tenants – but the applications were treated and processed as applications by an owner-occupier crofter within the meaning of sec 19B. In the course of the appeal, however, the respondents produced information to the effect that part of Sodom is owned by the Shetland Amenity Trust with the result, they argued and the appellant accepted, that it was not an owner-occupied croft within the meaning of sec 19B(5) and that consequently sec 19D did not apply. That meant that the application for consent to division under sec 19D(2) and all that had followed thereon was incompetent. On the motion of the appellant we therefore dismissed the appeal in so far as relating to Sodom by our order of 11 March 2016.

[3] Notwithstanding the dismissal of the appeal in so far as relating to Sodom, it is necessary to speak of both crofts in order to understand what the appellant was proposing when, on 12 June 2014, she applied to the respondents for consent to divide the crofts. To assist in that process an illustrative plan, lodged by the appellant, is annexed to this judgment.

[4] As will be seen from that plan the crofts are contiguous, lying side by side in strips running roughly north-east/south-west. Sodom extends to 2.84 ha and Whitefield to 2.72 ha. Both have apportionments. Sodom’s take the form of two adjacent fields, known as the North Park Fields, measuring 1.87 ha and 1.74 ha. Whitefield has two apportionments, one contiguous with it on the north extending to 3.79 ha and the other, measuring 2.14 ha, a short distance on the other side of the public road to the south.

[5] The appellant’s proposals were (and remain), first of all, to break the in-bye land into six parcels, to be known at Sodom (measuring 0.53 ha), Sodom A (1.27 ha) and Sodom B (0.94 ha) and Whitefield (0.70 ha), Whitefield A (1.12 ha) and Whitefield B (0.90 ha). The apportionments would, in terms of the application made to the Commission, become Sodom C and Sodom D (although this division came to be abandoned) and Whitefield C and D.

[6] The second stage of the proposals involves selling off Sodom A and Whitefield A, which are contiguous with each other and have historically been used as one field, as a single unit to her son, who lives in a house called “Vaila” on Sodom A and doing the same with Sodom B, Whitefield B and Whitefield C, selling them to a neighbouring crofter whose land abuts Sodom B and part of Whitefield B to the north and Whitefield C to the west. Like Sodom A and Whitefield A, Sodom B and Whitefield B have been fenced and used as a single field for many years. The residual parts of the in-bye land, which would continue to be called Sodom and Whitefield, would remain in the appellant’s ownership and occupancy. A former resident of Whalsay, Mr Magnus Polson, wishing to return to the island with his family, was interested in buying Sodom C and D as the site of a house. Whitefield D is a largish area said to be a fine site for a house although the intention seems to be, or have been at the time of the application to the Commission, to sell it for grazing.

[7] The foregoing explanation is based on the considerable amount of information provided by the appellant in support of the appeal, some of it in response to requests for clarification from the Court. But a dispute has arisen as to how much of it was known to the respondents when they made their decision. It is not disputed that they were aware of the units into which the appellant wanted to rearrange the land but there is some dispute about how much they knew of her intentions for some of the new units. So they have lodged a motion objecting to certain information being taken into account. We require to resolve that before proceeding further, since, plainly, the respondents’ decision has to be considered in the light only of the information before them when the decision was made; Nicolson v Crofting Commission 2013 SLCR 97. We have done so by referring to the appellant’s original applications and respondents’ case papers which are contained, in whole, on a CD lodged in process. That CD includes the customary report by the local representative of the Scottish Government Rural Payments and Inspections Directorate (“SGRPID”), in this case Mr David Cormack of their Lerwick Office. He visited the crofts, spoke to the appellant, and reported to the respondents on her proposals in writing on 13 October 2014.

[8] The first objection is to information that the appellant’s son is to buy Sodom A and Whitefield A and use the combined unit for pigs, chickens and sheep. This information has been put before the Court by the appellant and backed up by an email from her son. We would have expected such an obviously material consideration to have been mentioned in the application to the Commission itself or, at least, to Mr Cormack when he spoke to the appellant. However we can find no mention of it in the case papers and what Mr Cormack’s report says is that these crofts “are to be sold as one unit of land making it attractive for someone to use”. Accordingly we sustain the respondents’ objection to this information.

[9] Secondly, the respondents object to information that the proposed buyers of Whitefield B propose to grow crops and hay, are familiar with land drainage, have no concern about maintaining the drains and have contacted the respondents with their plans. The respondents say they have no record of any such contact. The appellant says that there was contact, by email and that the emails can be produced. No emails have in fact been produced. In the absence of evidence to the contrary we sustain this objection.

[10] Thirdly, objection is taken to information that the land comprising Whitefield B and Sodom B is known as “The Valley” and has been fenced as a single unit for more than 50 years and run successfully by the Arthur family (the appellant’s predecessors) for the purposes of growing crops and hay for sheep and cattle. As we understand it (from her email of 8 May 2016), the appellant accepts that this was information provided for clarification at a later date. Accordingly it cannot be taken into account.

[11] The next objection is to the content of a conversation between the appellant and Mr Cormack. It is plain from the reference to this conversation in the grounds of appeal (under sec 52(3)(e)) that it is a conversation which took place only shortly before the grounds of appeal were lodged and thus it cannot be taken into account.

[12] The respondents then object to information about access to the various new units. It is clear that a certain amount of information about access was before the respondents in the form of Mr Cormack’s report. In terms of access being problematic, he says (i) that a new access track would be required for Sodom B, (ii) that access to Whitefield A will be through Whitefield, (iii) that a new access track for vehicular access would have to be constructed for Whitefield B, (iv) that the only access to Whitefield C is through “crofts A and B” and that it is otherwise landlocked by neighbours, and (v) that access to Whitefield D is via a track through land owned by a third party. The additional evidence, to which objection is taken, is information from the appellant explaining how these problems were going to be resolved. It is unclear to us whether she was asked for this information at an earlier stage. Certainly the Commission’s application forms for consent to division do not ask for information about access, so none was provided at that stage, but the appellant says she contacted the Commission on numerous (though unspecified) occasions, explaining means of access to the various parcels. She also makes the point that would-be purchasers would require to be satisfied as to access. We suspect that, although insufficient information about access is given as a reason for refusal of consent, the applications were decided predominantly on considerations of fragmentation of the existing crofts. We think that, had the respondents been otherwise minded to grant these applications, they would have gone back to the appellant to ask for further and better particulars about access. But all we need say for present purposes is that it has not been shown that the respondents had possession of the information which we now have about access when they made their decisions and that, accordingly, we cannot take it into account.

[13] Finally, if we can take the respondents last three objections together, objection is taken to two letters from a Mr Michael Thomson FRICS and copy plan headed “Mr J Arthur”. The letter of 30 May 2006 from Mr Thomson is a valuation of various subjects, including the two crofts and the Sodom apportionments, prepared for the solicitors acting in James Arthur’s Executry. The letter of 10 July 2014 is a valuation of fields 7 and 9, being Sodom B and Whitefield B. The appellant says these are relevant for the purposes of showing the division of the land when she purchased it in 2006 and, we infer, the working of Sodom B and Whitefield B together. The map is produced to show that Mr Arthur bought the Sodom apportionment(s) separately from the croft, so that it was already a croft on its own. All three productions were lodged with the Court in support of the appeal but were not before the Commission. Accordingly we cannot take any account of them.

[14] The result is that the respondents’ objections to each of these productions and all of that information are sustained. That conclusion will no doubt cause the appellant dismay and exasperation. When the decision went against her and she decided to appeal, it was a very natural thing for her, as a lay person unaware of the limitations of the appeal procedure, to seek to strengthen her case by adducing additional material. However, for the reasons given, we cannot consider it. We would explain to the appellant that the nature of the appeal is not one which allows this Court to substitute its own decision, perhaps arrived at, in whole or in part, on new information, for the decision of the Commission. Instead Parliament has entrusted the decision-making role to the Commission and restricted the scope of an appeal to an examination as to whether, in arriving at their decision, the Commission erred in any of the ways listed in sec 52A(3). Accordingly an appeal is not a “second bite at the cherry”, only a review of what the Commission did on the basis of the information they had before them.

[15] The appellant will, nevertheless, feel aggrieved because she could have provided further information on, for example, access to the individual units, had she been asked for it. As it is, she has never been asked for it and is now told that it is too late to provide it. The respondents should consider revising their forms for consent to division so as to ensure that all the information which is likely to be relevant (and access to the divided units will always be relevant) is asked for and provided at the outset. In fairness to them, the policy document referred to hereinafter, does emphasise the need for this information and warns of the likelihood that applications will be refused if it is not provided but other warnings are given on the application forms for consent to division and a warning in respect of rights of access would not go amiss.

[16] If it is any consolation to the appellant, we do not think the provision of this further information would have made any difference to the respondents’ decision. We do not think it is sufficiently compelling to have led to a different result. The respondents really decided these applications the way they did because of the fragmentation to which they would lead and no amount of additional information around the edges, so to speak, was going to change that.

[17] That emphasis on the fragmentation to which her applications would lead and the respondents’ failure, as she sees it, to give equal weight to her ultimate intention to reorganise the various parts of the two crofts into larger, sustainable units is itself a source of frustration for the appellant. In short, she blames them for not seeing “the big picture”. As we shall see, however, there are legal reasons which limited the ability of the Commission to take this second stage of her proposals into account.

Legislation

Crofters (Scotland) Act 1993

19D Division of owner-occupied crofts

(1) An owner-occupier crofter may not transfer (whether or not for valuable consideration) ownership of any part of the owner-occupier’s croft without first dividing the croft into the part which the owner-occupier crofter proposes to transfer and the part which the owner-occupier crofter proposes to retain.

(2) The owner-occupier crofter may so divide that owner-occupier’s croft only if the owner-occupier crofter first obtains the consent of the Commission to that division.

58A Obtaining Commission approval or consent

(7) In considering their decision on the application, the Commission must have regard to the following -

(a) in the case of an application relating to a croft –

(i) whether any person is or will be ordinarily resident on, or within 32 kilometres of, the croft;

(ii) whether the croft is being or will be cultivated or put to such other purposeful use as is consented to under section 5C(4);

(b) the interests of the estate which comprises the land to which the application relates;

(c) the interests of the crofting community in the locality of that land;

(d) the sustainable development of that crofting community;

(e) the interests of the public at large;

(f) any objections received under subsection (4) or (5A);

(g) any plan of the Commission approved and published under section 2C;

(h) any other matter which the Commission consider relevant.

52A Appeal to Land Court: general

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

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

(b) the imposition of a condition by, the Commission on an application made to them under this Act.

(3) The grounds are that the Commission, in reaching their decision or as the case may be in determining as they did, in making their direction or in imposing the condition in question –

(a) erred on a point of law,

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

(c) acted contrary to natural justice,

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

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

(f) exercised their discretion in an unreasonable manner.

Grounds of appeal

(i) That the respondents made a material finding in fact but did not have sufficient evidence on which to base it: sec 52A(3)(b)

[18] The very first ground of appeal brings us up against the problem which has caused a mismatch between the appellant’s expectations and what the respondents thought possible.

[19] Under this head it is said that “In their refusal letter, the Commission refers to the hand dug drains in Whitefield B, but has not made the connection that Sodom B has the identical drains, as it is used as one unit”. It is not disputed that there are hand dug drains in Whitefield B. Accordingly it cannot be said that this was a finding in fact which the respondents were not entitled to make. The appellant’s real point is that, had the respondents been prepared to look at Whitefield B and Sodom B together, they would have seen that they are worked as a single unit, that the drains are common to both and that, as an aggregated unit, the cropping and grazing potential would not be so limited. She puts it more explicitly in relation to Sodom A and Whitefield A:

“The Commission states the use of this land [Whitefield A] would be limited due to its size, and has overlooked/ignored my proposal to join Whitefield A with Sodom A into an attractive land parcel (as with the other proposals). The Commission has provided insufficient evidence in stating that this land would be of “limited” use.

[20] However, the decision letters make clear that the respondents were aware that some of the new proposed crofts “may be sold together with other proposed new crofts”. So, although they express the appellant’s intentions much more tentatively than she does herself, they were aware that the intention was that some of the proposed new units would be worked together. What they went on to say about that was this:-

“The legal effect of granting the application would be to create what we regard as units that, as single and distinct crofts, would be difficult to cultivate effectively. We would not consider any ad hoc sale of some of the distinct and separate crofts as single units as a sufficiently strong reason for granting such an application.”

[21] That is a correct statement of what the legal position would be had the respondents consented to the proposed divisions, even if, subsequently, some of the new crofts were to be worked together. There does not seem to us to be a mechanism in crofting legislation which can bring about the sort of rearrangement the appellant is looking for short of a township reorganisation scheme under sec 38 of the Act. Although the definition of “crofting community” in sec 61 of the Act suggests a township can be as small as two crofts, such a limited re-arrangement as is proposed here is not going to be of interest to the Commission (whose role is central to such schemes). The result is that each individual unit would remain a distinct croft and no new crofts, comprising two or more units worked together, would be created. This might not matter very much where these units are in the same ownership or occupancy but the Commission have to have regard to the sustainability of individual crofts as such. That is why they felt unable to give much weight to the ultimate aim of the appellant’s scheme. The respondents’ approach to this – frustrating though it must be for the appellant – does not disclose any error of law which would permit us to set their decisions aside. The above quotation shows that they took account of the appellant’s intentions. What weight to attach to these intentions was a matter for them as the decision-making body and, again, we cannot interfere. Accordingly, wherever a ground of appeal relies on the argument that the respondents have failed to see the bigger picture, it must fail.

[22] Returning to the findings of fact challenged under this subsection of sec 52A(3), the appellant complains that the height of water in the drains has never been measured. We infer, however, that it was something which Mr Cormack saw for himself on his inspection, since he mentions it. He may not have measured it but he must have noticed it was high. Accordingly there is no merit in the challenge to this finding.

[23] The other point taken under this head is couched as follows:-

“I have informed them that there is a waiting buyer whose house “Vaila” is nestled in the centre of these 2 fields, and who plans to make good use of this land parcel by keeping pigs, chickens and possibility sheep. He has sent an email to the Land Court, fully explaining his proposed plans.”

[24] That is a reference to the appellant’s son’s proposals, intimated to the Court by email of 17 November 2015, and we have already explained why we cannot take account of his intentions: they were not known to the respondents at the relevant time.

[25] Finally, under this head, it is said that the respondents were wrong to conclude that there was insufficient evidence of any benefit to the community. This is more appropriately dealt with under the ground that the respondents failed to take account of certain relevant or material considerations, since the appellant’s complaint is that they arrived at this conclusion despite “the strong evidence I have supplied, which is to the contrary”. Accordingly we return to this point below.

(ii) That the respondents took into account certain irrelevant or immaterial considerations – Section 52A(3)(d)

[26] It is said that the respondents’ observation that the apportionment to be known as Whitefield D offered “only limited cropping due to its topography and peat soil” is irrelevant, as the topography and peat soil is the same as all over Whalsay. Whilst that is, no doubt, true, we consider the limited cropping available on Whitefield D to be a perfectly legitimate consideration in a situation where what was formerly an apportionment associated with the croft of Whitefield is to be a new croft in its own right. Its sustainability as a croft in its own right requires to be considered. Accordingly we do not think there is any merit in this criticism.

[27] The next point made here is an attack on the respondents’ reliance on the comments of Mrs Ingrid Sutherland, the respondents’ local Area Assessor, to the effect that the crofts should remain undivided. It is said that this appears to have been a change of mind on Mrs Sutherland’s part because her husband had offered to purchase Whitefield C and D some time previously.

[28] Mrs Sutherland’s comments are contained in a memo to the respondents of 6 January 2015 in which she comments on the condition of the crofts, their current use and the appellant’s plans for the proposed new units. In relation to the last of these matters she says:

“I have spoken to the Clerk of the Common Grazing and discussed this and cannot find any advantages to the crofting community in Whalsay. We would therefore like to see the 2 crofts remaining whole with their entitled apportionment and also the common grazing share would go with associated croft, this would enable would-be crofters to utilise the land.”

[29] It would appear, therefore, that in making these comments, Mrs Sutherland was giving not only her own opinion but the view of the local Grazings Clerk. We are unable to conclude that these comments are irrelevant or immaterial considerations which the respondents should not have taken into account. Both Mrs Sutherland and the Grazings Clerk were well placed to speak to the interests of the crofting community in the locality, to which the Commission were bound to have regard in terms of sec 58A(7) of the Act. What weight to attach to them, in the light of the appellant’s criticism of Mrs Sutherland’s credibility, was, again, a matter for the respondents.

[30] Next under this head, the respondents are criticised for a focus on the poor quality and limited cultivation value of the land and its “poor cropping and grazing values”. It is said that this is at odds with the conclusion that refusing consent to division would enhance the prospect of future cultivation of the croft. The point being made is that the quality of the land would remain the same regardless of whether the crofts were divided.

[31] Again we disagree with the appellant on this matter. It is another example of the point made earlier about the different perceptions of the appellant and the respondents. The respondents were being asked to consent to the crofts being broken down into smaller units. Although the intention was that Sodom A would be held and worked along with Whitefield A and likewise Sodom B with Whitefield B, these aggregations would not form new crofts. Instead there would continue to be four crofts. In these circumstances the respondents were duty bound to have regard to the viability of these crofts and the quality of the land and its potential for cultivation are clearly relevant to that. Accordingly this criticism is also rejected.

(iii) That the respondents failed to take into account certain relevant or material considerations – sec 52A(3)(e)

[32] Under this head, too, it is complained that the respondents failed to see “the bigger, overall picture” but we have dealt with that above and we say no more about it here.

[33] In terms of new matters, issue is taken with the respondents’ reliance on the land comprising Whitefield B and Sodom B being “damp”. It is said that this fails to take into account the appellant’s evidence to the contrary, to the effect that this is a fertile area of land which has been used for growing crops in the past. However, it does not seem to us that this information was before the respondents when they made their decision. The only information available to them was Mr Cormack’s comment as to the quality of the land. Of both Sodom B and Whitefield B he said nothing about previous use and, as to their potential for future use, all that was said was that the potential for cropping and grazing was limited due to the dampness of the land.

[34] The same point falls to be made in relation to the submission by the appellant that the proposed purchasers of Sodom B and Whitefield B had been in touch with the respondents to explain their interest in these units. The respondents say they have no record of that and no counter-evidence has been provided by the appellant. In those circumstances we are unable to entertain this criticism. The same goes for evidence as to how this area, known as “The Valley”, had been used historically by the previous owner.

[35] The grounds of appeal next speak of a failure on the part of the respondents to consider requests from three families wishing to buy the new parcels of land and the benefit of population retention which would follow from the appellant’s proposals. This is the same point as the appellant sought to make about community benefit under para (b) of sec 52(3)(b), which we said was more appropriately dealt with under this head.

[36] What the decision letter says about that is this:

“While the applicant indicated some intention to sell some of the new crofts in such a manner as may support population retention, no concrete evidence of this was demonstrated. There is some evidence that the new crofts would be sold to local/existing occupants, which would ultimately have a neutral impact on supporting population retention. Any weak evidence that the division of the original croft into multiple new crofts would support population retention is in any event outweighed by the evidence that the new crofts would be difficult to cultivate effectively and would not therefore be in the interests of the crofting community or its sustainable development.”

[37] The respondents were aware of the interest of Mr Polson and his family in returning to Whalsay but what he was interested in was Sodom C and D, with which the appeal is no longer concerned. So far as Whitefield is concerned, the interested parties are the appellant’s son, in respect of Whitefield A, and the neighbouring crofter to the north in respect of Whitefield B and C. Since both of them are already resident in this part of Whalsay and there is no suggestion that their continued residency is dependent on getting this land, we do not think the respondents erred in the weight they attached to their positions as part of the balancing act they required to carry out. In any event, as we have already said, what weight to attach to their interest in the land was a matter for the respondents. What the foregoing quotation makes clear is that the respondents did not fail to take account of these matters: they have both taken them into account and explained why they were not persuaded to grant the applications on the basis of them.

[38] It is then said that the respondents have misinterpreted the SGRPID report. It is pointed out that Mr Cormack had acknowledged the historical union of the original crofts and had commented on the benefits of the appellant’s proposals for dividing and reassembling them.

[39] It is certainly true that Mr Cormack saw some benefit in what was being proposed. We have already noted his comments in relation to Sodom A and Whitefield A being sold together as one unit of land, making it more attractive for someone’s use. Of Sodom B and Whitefield B he said “[These] are currently fenced together so it makes sense on the ground that a neighbouring crofter is wishing to purchase this land”. But his comments are to be read in the context of his report as a whole, which includes the negative comments made about the cropping and grazing potential of the divided crofts. Overall, we do not read his report as recommending that the respondents grant consent to the applications. That was not its function and even if Mr Cormack had gone beyond his remit (which was to supply factual information as to the current state of affairs and the likely effect of the appellant’s proposals), to the extent of making such a recommendation, it would not have been binding upon the respondents. It seems to us that, on a fair reading of the respondents’ decision letter, it cannot be said that they failed to realise what the appellant was proposing, nor take account of what Mr Cormack had said about her proposals. Their difficulty was the one to which we have already referred more than once: that even if or when those proposals were put into effect the result, in law, would not be the creation of new crofts but the continued existence of much smaller ones. Thus their repeated references to “multiple crofts”, of which the appellant complains at paragraph 9 of this ground of appeal, is not mistaken: it is correct.

[40] The appellant then argues that the respondents failed to take account of relevant information relating to access to the proposed new crofts.

[41] The decision letter refers to “Paragraph 44 of the respondents’ Policy Plan (September 2014)”. It says:-

“When considering applications, the Commission will wish to ensure that there is a specific right of access available or provided for any croft land or, where appropriate, common grazings. Such access must be suitable for agricultural or other machinery required for the cultivation and maintenance of the croft. Applications should ensure that access provisions are clearly and unambiguously shown and provide evidence that reflects such arrangements. Failure to meet such conditions is likely to result in an application being refused.”

[42] The decision letter goes on:

“As set out more fully above, we are of the view that the applicant has not demonstrated that adequate access has been provided for all of the new proposed crofts. We are of the view that, should access difficulties arise in the future as a result of approving an application such as this, this would have an adverse impact upon the ability of the croft to be cultivated.”

[43] The appellant asserts that there are two tracks which give access to Sodom A and Whitefield A, presumably from the public road. It is not said when or how that information was communicated to the respondents nor what the legal basis for the right of access is. So far as Sodom B, Whitefield B and Whitefield C are concerned, the problem of access is resolved, in the appellant’s view, by the fact that those lie above and to the side of the land of the neighbouring crofter who wishes to buy these parcels. That is spoken to directly by Mr Cormack, who says: “The neighbouring crofter to Sodom B, Whitefield B and Whitefield C is willing to purchase these areas as additional grazing ground to his own croft. This would resolve any access issues.” That is all very well while these three crofts remain in the ownership of the neighbouring land. The respondents’ concern is with the future and with the possibility that the crofts may come into different ownership. It is reasonable to assume that if that were to happen suitable access arrangements would be put in place at that time but the respondents were entitled to address the situation as it stands. They were being asked to consent to the creation of two new landlocked crofts. In terms of their foresaid Policy it was for applicants to satisfy them on the existence of appropriate rights of access in a situation such as this. Given that Sodom B and Whitefield C would continue to be crofts in their own right, the appellants were indeed bound to consider the question of independent access to them (independent, that is, of the will of the neighbouring proprietor). In that context we do not think it can be said that they failed to take account of the fact that he could take access from his own land. On a fair reading of their decision letter we consider that what they were saying was that such a limited right of access was not enough.

[44] Finally it is said that the respondents failed to take account of the appellant’s personal circumstances. The first of these is that she suffers from angina and wishes to retire. She says that the respondents’ have ignored this when they express the hope that “In refusing the application, the applicant can take forward her cultivation plans for the croft.” That was said by the respondents in the context of the appellant’s declared intention to cultivate the croft, keep chickens and sheep and make full use of the common grazings. The appellant now points out that two years have passed since she applied for division of the crofts, that she is now caring for her elderly mother and that keeping chickens and sheep are now “a distant dream”. She says that if division does not take place the crofts will remain in their present, unused state until her demise. That was not, however, the information before the respondents when they made their decision and they cannot therefore be faulted for not having had regard to it.

[45] Having considered each of the appellant’s grounds of appeal we find none of them established and accordingly the appeal fails. Although it will not be of much consolation to her we do not want to close this judgment without acknowledging the considerable amount of thought that has gone into the appellant’s proposals. They represent some imaginative thinking as to the best use of this land in the present circumstances. We also acknowledge her assistance in clarifying matters for us as the appeal has progressed. In short she has invested an enormous amount of time and effort in trying to bring those proposals to fruition. For her to succeed in this appeal, however, she had to show fault on the part of the respondents under one of the prescribed heads of appeal. It is because that has not been shown, rather than because of any lack of merit in her proposals, that the appeal has failed. We trust that she can understand and accept that.

Expenses

[46] Following our usual practice we have allowed 21 days for the lodging of motions and submissions on the expenses of the appeal.