DIVISIONAL COURT

(Lord McGhie)

NICOLSON v CROFTING COMMISSION

(SLC 91-12 – Order of 21 August 2013)

CROFTING – APPEAL AGAINST REFUSAL TO GIVE DECROFTING DIRECTION – PRELIMINARY ISSUE – ADMISSIBILITY OF NEW EVIDENCE AT APPEAL – WHETHER SITE INSPECTION NEEDED FOR APPEAL – CROFTERS (SCOTLAND) ACT 1993, AS AMENDED, SEC 52A

The appellant appealed against a decision of the Commission refusing to decroft an area of ground for house building. There were three similar appeals. He intended to build three adjacent houses. He asked for the cases to be sisted to allow him to commission reports from an architect and a planner. The Court allowed the appellant to commission reports but expressed the view that there might be a difficulty over admissibility of such material. When he eventually lodged the reports the Commission did object to their admissibility.

HELD (1) Appeals were governed by the provisions of sec 52A of the Crofters (Scotland) Act 1993, as amended and the intention of the section was that the Court deal with appeals from decisions of the Commission taken on the basis of the evidence available to them and that the Court should not hear evidence. (2) The purpose of a site inspection in relation to an appeal was not to allow the Court to take its own view of matters but to understand what material was before the Commission. Inspection would only be appropriate if competent grounds of appeal were presented which give rise to a need to examine the site to understand some aspect of the basis of the decision of the Commission.

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

[1] By order of 28 February 2013 the Court allowed the appellant to commission reports but expressed the view that there might be a difficulty over admissibility of such material. The appellant lodged reports but the Commission duly objected to their admissibility. By order of 3 May 2013 the court asked parties to say whether they consented to the court dealing with the preliminary question on the basis of written submissions and without a hearing. The preliminary question was whether the hearing of evidence was competent and appropriate. On the basis that the appellant would wish an oral hearing of the appeal itself the court assumed an oral hearing would be needed for the hearing on the merits but invited submissions as to where that hearing should be held.

[2] The Commission lodged submissions on the preliminary issue. They agreed that the matter be dealt with by way of written submissions. As far as the full hearing was concerned they expressed no preference as to venue. They confirmed their preference that there should be an oral hearing. The appellant also lodged submissions on the preliminary issue. He has agreed to having that matter dealt with on the basis of the written material submitted. He has also said that he is content to a decision on the basis of all the written submissions submitted to the court by the parties to this action and it is clear from the material set out in support that this consent is to the determination on the merits. However, he goes on to say that if a hearing is necessary it should be in Skye because of the need for a site inspection.

[3] Appeals from the decisions of the Commission are governed by the provisions of sec 52A of the Crofters (Scotland) Act 1993, as amended. The section makes no provision for the hearing of evidence by the Court. We are satisfied that the intention of sec 52A is that the Court is to deal with appeals from decisions of the Commission taken on the basis of the evidence available to them and that the Court should not hear evidence.

[4] This is, of course, consistent with the standard approach to appeals in Scottish Courts. Even where the scope of appeal is not expressly limited, the circumstances in which new evidence will be allowed are very restricted. The most familiar example is often referred to by the Latin label “res noviter veniens ad notitiam”. Before allowing evidence on that ground the appeal court has to be satisfied that there is new material which could not have been found by the party’s most diligent preparation before the original hearing and which has an significant bearing on the case. Evidence is rarely allowed on that ground. Where, as in sec 52A, appeals are limited to certain specified grounds which can broadly be described as appeals on a point of law, evidence will not be allowed.

[5] The appellant appears to suggest that the reports be admitted on the basis that they are not dealing with something new but simply supporting other evidence already available – from the planning officer. However, in this context, the reference to “new” evidence is not to be construed as “fresh” evidence. The objection is to any additional evidence. We cannot consider the evidence of the reports.

[6] As one party, the Commission, has expressed a clear preference for an oral hearing, such hearing must be held. Normally appeals take place in Edinburgh unless it is clear that a site inspection will be needed. The hope, if not the intention, of a party inviting the Court to make a site inspection will often be that the Court will form a favourable view of the merits of the application based on its own judgment of the land. However, the proper purpose of a site inspection in relation to an appeal, is not to allow the Court to take its own view of matters but to understand what material was before the Commission. Site inspection is not a routine aspect of appeals. A site inspection will only be appropriate if competent grounds of appeal are presented which give rise to a need to examine the site to understand some aspect of the basis of the decision of the Commission.

[7] We are not yet persuaded that a site inspection is necessary in the present case. We have to keep in mind that even if we take a different view of the matter from the Commission that would not necessarily mean that the appeal would succeed. The Court can only overturn the decision of the Commission if one of the statutory grounds is made out. Where a decision turns on matters of assessment of reasonableness, or exercise of a discretion, it is not uncommon for appeal court judges to find themselves thinking that they might have taken a different view of matters from the view taken by the body appealed against. But the responsibility for making the assessment has been given to the Commission. The Court could not change it merely because it disagreed. We will have to be persuaded that there has been some error in the way the Commission has addressed the task.

[8] While we do not rule out the possibility of a site inspection, we consider that the issues in this case can be addressed on the basis of plans and descriptions and that the appeal should be held in Edinburgh.