THE COURT

(Lord McGhie, Sheriff MacLeod)

MACGILLIVRAY v CROFTING COMMISSION

(Application SLC 99/13 – Order of 3 February 2014)

CROFTING – APPEAL FROM CROFTING COMMISSION – DECROFTING– DISPUTE OVER TITLE – COMPETENCY – WHETHER DECISION OF COMMISSION WAS OF A TYPE APPEALABLE – CROFTERS (SCOTLAND) ACT 1993 SEC 52A

The appellants had applied under sec 24 of the Crofters (Scotland) Act 1993 to decroft part of their croft which they had bought. After a hearing, the Commission reached the conclusion that the appellants did not own all the whole croft and that their application was accordingly “incompetent”; it could not be granted and a fresh application would be required. The Commission contended that this was neither a decision nor a determination and that it could not be appealed under sec 52A of the Act. This issue was dealt with by way of written submissions as a preliminary point.

HELD that the intention of the letter intimating refusal was to be a final decision on the application as it stood and this was sufficient to bring it into the scope of sec 52A of the Act. There was, in any event, no justification for a narrow construction of the section.

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

[1] This is an application by way of appeal against the refusal by the Crofting Commission to decroft part of the croft 37, North Ballachullish. The appellants had applied under sec 24 of the Crofters (Scotland) Act 1993 to decroft part of their croft. After a hearing, the Commission concluded that the applicants had not established that they owned all of the relevant part and that their application was accordingly “incompetent”. It could not be granted. A fresh application would be required. The appeal challenges this conclusion. Although the conclusion was expressed as a determination, it is contended on behalf of the Commission that it was neither a decision nor a determination and that it could not be appealed. It was agreed that this issue be dealt with by way of written submissions as a preliminary point.

[2] For the appellants, full written submissions were lodged. The Commission did not lodge submissions but expanded their written pleadings to incorporate what were, in effect, submissions. We have been able to work with these, although it is appropriate to repeat the point that written submissions take the place of oral submissions which might otherwise have been made at a hearing. They accordingly fall to be distinguished from written pleadings – which are expected to give notice of legal argument rather than set it out at length. Where the point is a short one, adequately covered by the pleadings, the written submissions might simply adopt the pleadings. It can, however, lead to confusion if the distinction between pleadings and submissions is not recognised.

[3] In summary, it can be said that we think it beyond dispute that the letter intimating refusal was to be understood as a final decision on the application as it stood. We are satisfied that this was sufficient to bring it within the scope of sec 52A of the Act.

Statutory material

Crofters (Scotland) Act 1993

Crofting Reform (Scotland) Act 2010 (“the 2010 Act”)

The Crofting Reform (Scotland) Act 2010 (Commencement No. 2, Transitory, Transitional and Saving Provisions) Order 2011 (SSI 2011 No. 334 (C. 29)).

Relevant provisions

[4] In this Note references to sections are to provisions in the 1993 Act unless otherwise expressed. While some mention is made of the provisions of sec 24 which deal with “decrofting”, the important provisions of that Act for present purposes are the opening parts of sec 52A which are in the following terms:

“(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,

(c) the Commission on an application made to them under this Act.

(2) …

(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.”

Authorities

Carpenter v. Secretary of State for Work and Pensions [2003] EWCA Civ 33
Coutts v. Coutts (1866) 4 M. 802
Robson v. Menzies 1913 SC (J) 90
Scottish Borders Council v. Scottish Ministers 2013 SLT 41
Secretary of State for Work and Pensions v. Morina [2007] EWCA Civ 749
Stewart v. The Crofters Commission (Application RN SLC/40/11 –10 April 2013)
Wilson v. Glasgow Tramways Co. 5 R. (1878) 981
Wordie Property Co. Ltd. v. Secretary for State for Scotland 1984 SLT 345

Other materials

Maclaren Court of Session Practice (1917)
Rt Hon Lord Clyde and Edwards Judicial Review (2000)
Crofting Reform Proposals for Legislation (SE/2002/105; July 2002)

Background facts

[5] The appellants contend that they own Croft 37, North Ballachulish. It had formerly been tenanted by the first named appellant who reached agreement with his landlord to purchase the entire croft. The Disposition in favour of the appellants purported to convey the croft. They obtained planning permission for a 10 house development on the croft and on or about 24 March 2011 applied to the Crofters Commission (as it then was) under section 24(3) of the (“the 1993 Act”) to decroft the part of the croft required for the development. Their decrofting application was returned by the Commission for the stated reason that there was confusion over the plans originally submitted with the application. A new plan was prepared by the Commission’s Geographical Information System Team and approved by the appellants. Their decrofting application was re-submitted using the new plan under cover of a letter from their Agents, MacPhee & Partners, Solicitors, Fort William, dated 21 April 2011.

[6] There were objections to the application from local occupiers who opposed the development on various grounds including the contention that it would lead to loss of valuable agricultural land for which there was said to be a demand. After sundry procedures, a hearing was arranged to take place before three Commissioners on 13 May 2013.

[7] By e-mail sent to the Commission on 9 May 2013 solicitors acting for one of the objectors intimated an intention to raise a challenge to the applicants’ title to apply for a decrofting application. They contended that the plans showed that the applicants did not own the whole of their croft, and advised that they might challenge the application as incompetent. This contention was intimated to the solicitors acting for the applicants on Friday 10 May. At the hearing various question were put to the solicitor who made it clear that this challenge had taken the applicants by surprise and that time would be needed to allow a response to it if it was to be regarded as a relevant ground of objection. By letter of 15 May 2013, the applicants’ solicitors set out a detailed response and on 17 May sent a further letter to the Commission in response to a telephone call enclosing a Land Certificate and plan. It is averred that the next communication from the Commission was the letter of 3 July.

[8] It is not necessary for present purposes to deal with the nature of the challenge to title. Put very shortly, the applicants contended that they had bought the whole croft formerly tenanted by the first applicant and now occupied by them; that the terms of the Disposition were habile to cover their possession; and that the doubts caused by certain measurements shown on the plan were not well founded.

[9] On 3 July 2013 the Crofting Commission wrote to the appellants’ solicitors in the following terms:

“I refer to previous correspondence concerning your client’s application to de-croft part of the above croft and to the Hearing held on 13 May 2013.

This application has been determined on the law as it stood on 28 May 2011 and not as amended by the Crofting Reform (Scotland) Act 2010.

The Commission has found that the application is not competent and our reasoning is as follows. At the hearing the critical issue arose as to whether the whole of the croft owned and/ or tenanted is occupied by the applicants.

We have concluded on the evidence presented to us in both the applications submitted by MacPhee & Partners for their clients Mr and Mrs MacGillivray on 24 March 2011 and the re-submitted application sent by MacPhee & Partners on 21 April 2011 that the occupied extent of the croft and the owned extent do not coincide.

In the absence of any evidence that the applicants own the full extent of the land occupied by them as part of their croft (such as another Disposition by the landlord) or any adequate explanation by the applicants, the Commission have assumed that part of the croft remains tenanted.

The Commission are of the view that the application is to be returned to the applicants as incompetent on the basis that it is not clear from the plans provided whether part of the occupied croft extent (as shown by the Crofting Commission plan approved by the applicants) still remains in tenancy and how much of the croft is owned.

The application is therefore returned.

Any new application will have to be accompanied by evidence that the whole croft was owned by the applicants and that the area applied for was within the boundaries of their purchased croft land. If found to be competent, the application will be processed in accordance with the legislative provisions relating to de-crofting that are in place at the time of its receipt.

If you wish to contact us about this application, please quote case number 4.86.30323.”

[10] The present appeal under section 52A(1)(a) is against that disposal of the appellants’ decrofting application. The respondents contend that the letter did not represent a decision or determination. Their averments in answer 12 are in the following terms. “… the word “decision” in the letter was used loosely and not in terms of the legal and statutory meaning of the word “decision”. Explained and averred that the said letter should have made it clear that the issues as to the competency of the application which were raised by Mr Murchison prior to and at the Hearing and on which Mr Colin Kennedy as Commissioner commented fell to be “decided” as a prerequisite to whether any decision or determination should be made on the application. The decision referred to in the said letter was not a final decision, determination or direction on the application, which would require a full consideration of the merits of the application with regard to the relevant law, but a conclusion as to the competency or otherwise of the application”.

[11] It may be noted that the word “decision” was not used in the letter. Reference was made to the application being “determined” and to things being “concluded” and the Commission being “of the view”. It is clear that the letter was to be understood as a final decision on the application and we have no doubt that such a decision is within the scope of our jurisdiction under sec 52A. However, the parties made lengthy submissions and, as those for the Commission appear to us to show various misunderstandings, it may be helpful to deal with the submissions in some detail.

Submissions for the Commission

[12] The respondent contended that the finding by the respondent that the application was not competent was not a “decision, determination or direction” in terms of section 52A(1) and accordingly, that no appeal was competent to the Court. This appeared to be based on reference to the New Shorter Oxford English Dictionary which defined a decision as “the action of deciding a contest, dispute, etc; settlement, a final (formal) judgement or verdict”. A determination was defined as “the action of coming to a decision” and “the settlement of a suit or controversy by the authoritative decision of a judge or arbiter”. It was contended that a “direction” was to be understood in terms of the powers available to the respondents to provide an ancillary order in relation to a decision or determination. The quality of a decision or determination was that it was final and conclusive. The terms applied to something issued by the relevant Court or Tribunal at the end of, and as the outcome of, its decision-making process and in line with its normal procedures for issuing such decisions. The respondent would have made a decision or determination with regard to this particular application if it had granted or refused the application. If the respondent had refused the application, it would have issued a decision letter to the applicants and to any other interested parties stating that the application had been refused, and would set out the reasons for such refusal.

[13] A decision had the quality of being conclusive of an application (i) having taken account of all the evidence presented to the respondent as the decision-maker and having afforded all the parties the opportunity to make representations and (ii) having come to a determination based upon an evaluation of the matters of fact and the application of the relevant law. Where an issue arose as to the competency of an application before the Commission, it could be returned to the applicant without a decision or determination having been made. It was contended that this was what had happened in the present case. If the respondent had been satisfied that the application was competent, and having gathered all the evidence and information required to enable it to come to a final decision or determination, it would have gone on to make a decision on the merits. But where there were reasonable grounds for doubting the competency of an application, even at a late stage in the evidence-gathering process, the respondent correctly returned the application to the appellants. In the present case, the application was returned to the applicant because matters of fact arose shortly before and during the hearing held on 13 May 2013 that cast doubt upon the competency of the application. No decision was made on the merits (or otherwise) of the application. The Commissioner did not evaluate and assess the evidence in light of the relevant law and policy because no decision was to be made.

[14] It was submitted that, as a statutory court, the right of appeal to the Land Court was limited to circumstances where the Commission had made a final decision, determination or direction. Where a final decision or determination has not been made, there was no right of appeal to the Land Court although there might be other judicial remedies. The legislation could have provided a right of appeal to the Land Court on the grounds that an application had been returned to the applicant as incompetent when in fact it was competent, but the right of appeal was deliberately restricted to the circumstances where the Commission had made a final decision or determination. In the present case, it was open to the appellants to make a fresh application. It was submitted that the right of appeal was limited because it was not intended that the Land Court should have a “general right of judicial review” of the procedures of the Crofting Commission.

[15] For the jurisdiction of the Land Court to be invoked, there had to be both a decision, determination, direction or condition imposed and an application. As a matter of statutory interpretation, it had to be assumed that the reference to "an application" meant a competent application, as only a competent application could be decided or determined by the Commission. An application might be found to be incompetent at a relatively late stage in the information-gathering process carried out by the Commission, as was the case with this particular application. The respondent was informed shortly before the hearing that the occupied and owned extents of the croft did not appear to coincide. This issue was explored more fully at the hearing. The respondent assessed the application to be incompetent and returned the application to the applicants as no decision could be made on it. It was submitted that the respondent had a discretion in this case - as it did in respect of all applications - to assess the competency or otherwise of the appellants' application. The Court’s jurisdiction did not extend to assessing the competency of an application, which was properly a matter within the respondent’s discretion.

[16] The respondent asserted that it did not require to make submissions as to whether the appellants had a right to make an application for judicial review. That would be a matter for the appropriate court. But sec 52A(1) made it clear that appeal could be made to the Land Court only in certain circumstances. Whether or not the role of the Court in such an appeal was akin to a judicial review was not relevant to the issue of the Court's jurisdiction in relation to this particular appeal. The relevant issue was whether the return of the application to the applicants on the grounds of competency was an action which allowed an appeal to the Court.

[17] It was accepted that the jurisdictional issue was a pure question of statutory construction. The respondent did not contend that the terms “decision” and “determination” were synonymous. However, the term “determination” was used in the Act, not to impute a wider meaning, but to reflect the fact that the Act itself – aside from section 52A – refered to the Commission as making “determinations” in certain contexts; for instance, sections 3A, 3AA, 15, 51A, 51B and 52 of the 1993 Act. It was asserted that the judicious use of the word “determination” by Parliamentary draftsmen reflected the existing terminology of the Act, and nothing more or less.

[18] In answer to an argument for the appellants that the respondent could not “have it both ways”, it was suggested that the appellants similarly could not have it both ways. If the respondent’s return of the application was not a relevant decision or determination, the appellants should not be able to submit a new application in 2013 or 2014 (curing defects in a previous application) and be entitled to have such an application determined by the law in place as at March 2011. If the appellants were successful in the argument that the Court had jurisdiction to deal with the appeal but unsuccessful in arguing that their application was competent, any new application should be determined by the law at the date the application was made, not the law as at March 2011. It was the responsibility of the Appellants to submit a competent application. Any applicant to the Crofting Commission had to accept that the law applicable was that in force on the date when a competent application was made.

[19] In the Act the reference to an application must mean a competent application. It was submitted that the appellants could not retrospectively "cure" an incompetent application so that the legal regime applicable at the date of the earlier incompetent application could apply. Words such as "resubmission" or "curing" might be used informally by an applicant, but the relevant date was the date on which a competent application was received.

Submissions for appellants

[20] For the appellants it was stressed that the object of the introduction of the right of appeal under section 52A(1) of the 1993 Act was to establish a coherent and consistent system of appeal against regulatory decisions of the then Crofters Commission. Reference was made to the Crofting Reform Proposals, at paragraphs 10.1 – 10.2.

[21] Judicial review was concerned with the validity (that was to say, the legality and propriety) of a decision and not with the merits of a decision that had been lawfully and properly reached. It was accepted that the term “appeal” generally denoted an examination of the merits of a decision. However, that distinction between the concepts of review and appeal was somewhat blurred in the context of certain forms of statutory appeal. Some appeals allowed grounds of challenge which were comparable with or indeed identical to those which would be open to the applicant in an application for judicial review: Clyde and Edwards, at paragraph 1.06. There was a substantial overlap between the grounds of appeal listed in section 52A(3) and the various respects in which decisions could be brought under non-statutory challenge by invoking the general supervisory jurisdiction of the Court of Session in the form of a petition for judicial review. Reference was made to Wordie Property Co. Ltd. v. Secretary for State for Scotland at pages 347-348

[22] It followed that on appeal to the Land Court from a regulatory decision of the respondents, it was not a question of whether the Land Court agreed or disagreed with the decision. No appeal would lie unless one of the grounds of appeal set out in section 52A(3) was made out. An appeal would lie under section 52A(1)(a) where there had been a material legal flaw in the respondent’s approach. The respondent’s submission that: “the reasons why the right of appeal is limited is because it was not intended that the Land Court should have a general right of judicial review of the procedures of the Crofting Commission,” had matters the wrong way round. The reason why the right of appeal was limited to the “quasi-judicial review” grounds was because it was not intended that there should be a general right of appeal to the Land Court against the merits of a final decision.

[23] The crux of the argument for the respondent that it was not open to the appellants to appeal to the Land Court under sec 52A(1)(a) was that that the section applied only to final decisions on the merits of a decrofting application, and by this they seemed to mean only where an applicant had submitted an application which was correct in point of form and the respondent had considered its merits before either directing – to use the terminology actually employed in sec 24(3) - that the croft should cease to be a croft or refusing to grant the application. The issue was a pure question of statutory construction. The appellants contended that no such restricted meaning fell to be given to the terms “decision” and “determination.” In any event, on a proper analysis of the letter the disposal was in itself effectively a decision “on the merits”.

[24] The letter fell to be regarded as a final decision because it appeared that the respondent took account of the evidence presented to them as the decision-maker and, having afforded the parties the opportunity to make representations, bore to have reached a conclusion on the evidence “…that the occupied extent of the croft and the owned extent do not coincide.” Thereafter, they applied to the facts as found by them what they held to be the relevant law, in order to reach the conclusion that, in the absence of evidence that the applicants owned the full extent of the land occupied by them as part of their croft, they were not entitled to a decrofting direction in the terms sought. It was implicit that the respondent had proceeded upon the basis of an interpretation of sec 24(3) that where any part of the croft was not vacant, a decrofting application was incompetent and a factual evaluation that in the circumstances of the appellants’ application, part of Croft 37 either was not vacant, or at least might not be vacant. They had to decide or determine these matters in a particular way in order to be able to justify returning the appellants’ decrofting application to them as incompetent. If there was a material legal flaw in the approach which resulted in the respondent holding the appellants’ decrofting application to be “incompetent”, that would in principle to be precisely the sort of decision or determination that the grounds of appeal set out in sec 52A(3) were intended to comprehend.

[25] The stated position of the respondents to the effect that their disposal of the appellants’ decrofting application was not a decision or determination on the application but that nevertheless the appellants should not be entitled to have a revised application determined by the law in place as at March 2011 was self-contradictory. If the decrofting application had not been finally and conclusively decided or determined, the law to be applied would be that which was in place when the application was originally made: Stewart v. The Crofters Commission at page 18.

[26] The practical significance was that for all decrofting applications made after 1 October 2011 the amendments introduced by section 43 of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) would apply. These set out additional matters to be taken into account in determining a decrofting application, the practical effect of which might be to afford the respondent greater scope for refusing decrofting applications. Formerly there was a strong presumption in favour of decrofting where reasonable purpose was demonstrated by reference to the fact that planning permission for development of the subjects of the application was in place. The appellants accepted that if they were unsuccessful on the merits of the appeal any new decrofting application made by them would fall to be determined according to the law in force as at the date such decrofting application was made.

[27] The appellants further submitted that the Commission had not provided any explanation, in either the letter or in their pleadings, as to what they meant when they contended that the decrofting application was “not competent.” No indication had been given as to the criteria against which the competence of the appellants’ decrofting application was assessed by the respondent. Section 24(3) provided that: “Where a croft is vacant, the Commission may, on the application of the landlord, direct that the croft shall cease to be a croft or refuse to grant the application; . . .” There was no provision for any intermediate form of disposal whereby the respondent might, without refusing to grant an application, hold it to be “not competent”. This supported the argument that if the respondent’s letter was not a decision to refuse the application, the possibility of the curing any “incompetence” within the existing application remained.

[28] The Commission appeared to have treated an insufficiency of evidence as an issue of competency. However, a failure to produce sufficient evidence to establish an entitlement would not go to the competency of their application in the sense in which that word is commonly used. In the present context, “incompetency” meant that the adjudicatory body had no power to deal with the particular application. This meant no power to decide either for or against the applicant: Wilson v. Glasgow Tramways Co. per Lord Gifford at page 993; Robson v. Menzies at page 93 per Lord Justice General (Dunedin). A plea to the competency was generally conceived of as being a preliminary plea objecting to the form of a summons and was distinguished from a plea to the relevancy: Maclaren at page 387. If upheld, it would lead to a dismissal of the action without inquiry into the merits.

[29] Although the present was a non-litigation context, the respondent did not appear to be suggesting that they had no power to deal with the application or that it was not in proper form. But even if that had been the basis of the decision this would not take their decision or determination outwith the scope of an appeal under section 52A(1)(a). The issues referred to in the letter dated 3 July 2013 would in normal litigation terms be regarded as issues of relevancy rather than of competency. Competency and relevancy could run into one another: Coutts v. Coutts per Lord President McNeill at page 803. But the evidential considerations which featured so largely in the letter were inextricably linked with the substantive legal issue of the true meaning and effect of secs 23(11) and 24(3).

[30] The question of what was meant by a “decision” or “determination” was essentially a question of statutory construction. Reference was made to Secretary of State for Work and Pensions v. Morina per Arden LJ at paragraph [42]. It was not always clear upon what basis, or with what degree of consistency, the terms “decision”, “determination” and “direction” were variously deployed in Acts of Parliament. But there was nothing in the statutory provisions in the present case to justify a restricted meaning. Section 52A(1)(a) did not provide that the right of appeal was limited to a “final” decision, determination or direction. When the grounds of appeal set out in sec 52A(3) were considered, it was obvious that no such limitation could be implied. By way of example, the grounds of appeal that the respondent acted contrary to natural justice or exercised their discretion in an unreasonable manner could arise at any stage in the progress of a decrofting or other form of application. In holding the appellants’ decrofting application to be “not competent”, the respondent made a decision or determination on an application made to them. Such a decision was every bit as final and conclusive as a stated refusal to grant the application after a consideration of “the merits”.

[31] Although the statutory provisions there being considered were quite different, there was a helpful parallel in the decision of the Inner House in Scottish Borders Council v. Scottish Ministers. The appellants pointed to cases cited therein, namely Chalgray v. Secretary of State for the Environment (1977) 33 P & CR 10 and Button v. Jenkins [1975] 3 All ER 585; and, in a different statutory context, Rickards v. Rickards [1990] Fam 194.

[32] It appeared to be agreed that the terms “decision” and “determination” played different roles in sec 52A(1)(a). The term “determination” in context could have a wider meaning than the word “decision”: Carpenter v. Secretary of State for Work and Pensions per Laws LJ at paragraph 14. If the letter did not embody a decision then it could certainly be treated as be a determination. The respondent had argued that the use of word “determination” simply reflected the existing terminology of the 1993 Act. However, this further underlined that sec 52A was intended to establish a comprehensive general system of appeal against regulatory decisions of the respondents. There was no credible policy justification why the present challenge should be excluded from the generality of that scheme.

Discussion

[33] It may be said, by way of introduction, that we recognise that an administrative body such as the Commission may find it very useful to be able to return an apparently defective application for revision. The Principal Clerk adopts a similar approach in the Land Court and, no doubt, court clerks up and down the country provide the same helpful service. This type of action is not to be seen as a decision on the application. It will not have been made by a judicial member of the court or body in a judicial capacity. In a body like the Commission it may not be easy for an applicant to know when rejection of an application is intended as a return for revision and when it is intended as a formal decision. But where the effect of any return is a refusal of the application, the status will not depend on the terminology.

[34] Although not asserted by the Commission as forming any part of their argument, we also have some sympathy with the idea that there ought to be some limit on the types of decision which can be appealed. Neither the Court nor Commission should have to deal with appeals over insubstantial issues. However, in terms of sec 52A a decision can only be appealed by someone with an interest in reversing it; such person runs the risk of liability in expenses; the appeal requires to be on the limited statutory grounds; and even a successful appeal is likely to lead to the matter being sent back to the Commission. These factors provide a practical constraint and we see no justification for further constraint by deliberately adopting a restricted or narrow approach to construction of the provisions of sec 52A.

[35] The contention for the Commission is, in effect, that it is only where they have had a full hearing and reached a decision “on the merits” that there can be an appeal. It would follow that if, for whatever reason, they decided to reject an application without a proper investigation, this would not be appealable under sec 52A. The Commission appear to recognise that this would be an unsatisfactory state of affairs. They do not go as far as suggesting that there is a remedy by way of judicial review but simply seem to say that they do not exclude that. They advance no reason of principle or policy which might justify a conclusion that Parliament intended to restrict such appeal to judicial review. We are satisfied that considerations of principle and policy support a straightforward construction. We find the submissions for the appellants to be broadly persuasive.

[36] In particular, we think there is force in the appellants’ contention that the respondent’s arguments have matters the wrong way round. It is plain that sec 52A does not provide a general right of appeal to the Land Court against the merits of a final decision. The intention was only to give the Court a right to intervene where the Commission had approached matters in the wrong way. In some circumstances it might make sense to await the final decision before appealing. In others, the interested party might wish to present an appeal as soon as possible. If the Commission decided that, as a matter of law, an application could not go ahead, there would clearly be a need for a simple mechanism for appeal. That might seem to be precisely what Parliament had in mind in providing for an appeal to the Land Court instead of the alternative of judicial review. Similarly, if the decision not to let the case proceed was at the whim of the Commission and, accordingly, an apparent breach of natural justice, there would be an obvious need for some mechanism to correct it. The obvious mechanism is sec 52A.

[37] In this case the reason for refusal has been given the label of “competency”. This has allowed the sophistry of an argument on the lines that, as the Commission does not have to deal with an incompetent application, a refusal on that ground is not a relevant decision. But, essentially, what happened was that the Commission reached a conclusion on a preliminary issue of law and fact. This led to the application being disposed of without a full consideration of all facts and circumstances which might have been taken into account in the normal case. We see no reason why Parliament might have wished to exclude such a decision from the scope of the scheme of appeal to the Land Court

[38] For present purposes it is unnecessary to reach any conclusion as to the validity or otherwise of the reasons for the Commission’s rejection of the application. It is sufficient for determination of the issue of our jurisdiction to say that the letter was intended to convey to the applicants a conclusion by the Commission that their application was not to be granted. That plainly was a decision on the application. We see no reason based on the language of sec 52A, no reason of principle and no reason of policy to support the argument that this was not a decision falling within the scope of the section. We are satisfied that the challenge to jurisdiction is not soundly based.

[39] The parties were agreed that the issue was essentially one of construction. Section 52A provides that an appeal shall lie to the Land Court against “any decision, determination or direction ….by the Commission on an application made to them”. The respondent looked first at dictionary definitions of the words “decision” and “determination” and relied on definitions explaining the words in terms of a final judgement or verdict. In effect they contended that the word “any” should be ignored and that the word “decision” had to be read narrowly as limited to a final order or conclusive decision.

[40] There is nothing in the language of sec 52 A to support the view that the words require to be read in a narrow sense. The word “decision” can be applied to the outcome of any process of choosing a course of action. In any dispute resolution process decisions may be made at different stages for different purposes. There is nothing in the language of the section to indicate that the right of appeal was limited to a decision taken after a full hearing. In court practice, it is common for important questions to be determined by way of preliminary procedure; normally by way of debate on the fundamental issues of law. Appeals against decisions on such preliminary matters are common. If Parliament had intended to restrict the right of appeal from the Commission to a particular class of decision we think it would have seen the need to make this clear. On the face of it, the use of the word “any” tends to show a contrary intention.

[41] The respondent also founded on the term “on the application”. They contended that this plainly referred only to a competent application and that, accordingly, a decision that an application was incompetent was not a decision on an application. This contention flies in the face of normal English usage. A decision that a particular application is incompetent can sensibly be said to be a decision on the application. It has the effect that the application is refused.

[42] Whatever limitations might have to be implied, we are satisfied that the language of the statute does not warrant restricting the meaning of “decision” or “determination” to one taken after the decision-maker has afforded all parties the opportunity to make representations. It may be said that we recognise that a distinction can be drawn between decisions on matters of procedural convenience and decisions which determine aspects of substance. The former will not normally fall to be regarded as decisions “on the application”. But we see no need to read that expression narrowly. The reference to “any decision” seems to us to require a broad approach. Where a finding by the Commission deals with any aspect of the substance of an application it can properly be described as a decision on the application. A decision on competency is such a decision. It seems very clear to us that a finding that an application is to be refused as incompetent is a decision which can be appealed under sec 52A. A finding that an application is competent also appears to us to be one falling within the scope of the section on a proper construction. It would be a decision capable of being appealed by an interested objector.

[43] When we move from consideration of the language of the statute to consideration of principle or policy, it may be noted that the respondent advanced no argument based on authority or principle. It is well established in Scottish court practice that decisions on preliminary issues can be appealed. No reason of principle was advanced for a more restricted approach to decisions by an administrative or quasi-judicial body such as the Commission.

[44] As to policy, we are satisfied that the intention was to provide a coherent system of appeal for people adversely affected by decisions of the Commission. As we have said, we understand the view that scope for such appeals should be restricted. Many decisions in course of an application may be either purely procedural or essentially insubstantial. However it is noted that the Commission do not take the point that the issue in this case was insubstantial. They do not contend that it would not be open to judicial review; they simply decline to comment on that possibility. We can see no reason of policy which would justify a restricted right of appeal to the Land Court in circumstances where the only alternative would be to seek a remedy by way of judicial review. The grounds for appeal in sec 52A are limited. They are not significantly different from the grounds upon which a judicial review might proceed. For example, if an issue of competency is identified it will normally fall to be dealt with as a preliminary issue. If the Commission, by error of law, wrongly accept an application as competent there would be nothing to be served by having to go through the whole process of determination “on the merits” before allowing an appeal by a dissatisfied objector.

[45] For completeness it may be added that we have found it unnecessary to go to all the various cases cited on behalf of the appellants. We do not have ready access to English decisions and the points being vouched either did not seem to be of critical importance or were not in serious doubt. We think our approach consistent with the decision in Scottish Borders Council v Scottish Ministers.

[46] One problem which can arise in relation to the identification of a relevant decision is the time allowed for appeal. Where there is a time limit for appeal against a “decision” it may be critically important to identify when a finding is properly to be described as a “decision”. However, under sec 52A the time limit is expressed by reference to the time when the Commission “dispose of the application”. This language can be contrasted with “any decision .. on an application”. The effect would appear to be that a person who might wish to appeal against a decision dealing with some preliminary aspect of an application would be free to wait till final disposal before deciding whether an appeal was required. This makes good practical sense.

Competency

[47] We are asked to deal only with the scope of our jurisdiction under sec 52A and we have not heard submissions on the substantive grounds of appeal. We do not seek to express any views on these grounds at this stage but the appellants made submissions on the issues of competency and some further comment might be of assistance.

[48] The reason for refusal was said to be that the application was not competent. This term is loosely used in various contexts where a precise meaning is sometimes unimportant. As we have said, there can be no doubt that, in any sense of the term, a decision that an application is incompetent is a final decision in relation to that particular application. But it may be doubted whether it can properly be said to be a matter for the discretion of the Commission. The competency of an action or application is an issue of law. It may require to be based on findings of fact. Findings in fact relating to issues of competency should be made on a balance of probabilities on the evidence presented. If an application is incompetent it must be refused. If it is competent it must be given proper consideration.

[49] As the appeal in this case is in respect of a decision based explicitly on competency, it has not been necessary for us to look behind that label. However, the traditional meaning of a challenge to competency was that an application was seeking a remedy which the court had no power to grant. More broadly, however, in a civil context, the challenge has come to include any objection to the form of an application. The appellants accept that the term is not always used in any very precise way. Decisions on relevancy and competency are sometimes blurred. But, we think that where an applicant’s assertions, if proved, would establish a sound basis of claim, it may be misleading to discuss matters in terms of competency. If an applicant asserts ownership of land as a basis for his application and cannot prove that ownership, the application should be refused as unfounded in fact rather than as incompetent. It might well be convenient for the issue of ownership to be dealt with as a preliminary issue but this does not convert it into an issue of competence, still less an issue to be decided by exercise of a supposed discretion.

[50] It was asserted that the application was incompetent because the applicants did not own the whole croft in respect of part of which they were seeking a de-crofting order. It is not clear whether the decision of the Commission was based on such a broad proposition or whether it was based on a narrower proposition that there could only be de-crofting of part of a croft if the whole of that part was owned by the applicant. In any event, ownership would clearly be an essential element of the application. Procedures might sensibly be adopted to let any dispute over that matter be dealt with as a preliminary point. If an applicant could not prove title to all the part applied for, the question might arise as to whether the application should be treated as restricted to the land which was owned. Addressing the matter in terms of what had to be proved and what the precise consequences should be if everything asserted was not proved, might have allowed a clearer analysis of the issues in this case than a challenge expressed in terms of competency.

[51] However, it may well be the case that the label is not important. Plainly the Commission rejected the application on the basis of a preliminary point. The Court would expect to be able to deal with the real issues in the present case without the matter foundering on any technicality of terminology.

Decision

[52] We are satisfied that the findings communicated by the letter of 3 July 2013 fall to be regarded as a decision capable of being appealed to the Court in terms of sec 52A.

[53] The respondent asked that if the appeal was to proceed there should be an opportunity for further submissions. The next stage would normally be a hearing of the appeal and plainly this would provide adequate opportunity for full submissions. However, having regard to the confusion referred to in paragraph [2] above, it is not entirely clear whether the respondent intended simply to ask for an opportunity for adjustment of pleadings. We are not confident that further pleading will be of assistance in clarifying the matters in dispute between the parties and we think the matter should go to a hearing as soon as possible. We accordingly have ordered that arrangements for this should proceed. If the respondent considers that its pleadings could be revised to give better notice of the precise case it seeks to make it should feel free to propose amendment for that purpose.

[54] It seems plain that if the appellants are successful in their appeal, the matter will, in any event require to be returned to the Commission for final disposal and the parties may wish to keep this in mind. Parties should give careful consideration to the question of whether the preliminary issue could be more tightly focused. As matters stand we think that a hearing is necessary but it is possible that a more focused issue could be dealt with on written submissions.