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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacIntyre, Re Application For Judicial Review [2001] ScotCS 85 (5 April 2001) URL: http://www.bailii.org/scot/cases/ScotCS/2001/85.html Cite as: [2001] ScotCS 85

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[1] On 21 August 1996 the petitioner, Alan MacIntyre, applied to the Scottish Land Court for an order under section 12(2) of the Crofters (Scotland) Act 1993 (hereinafter referred to as "the Act"), requiring that Miss Catherine Dagg, Miss Analiese Dagg, Mr. Christopher John Dagg (hereinafter referred to as "the Daggs") should grant to him a conveyance of the site of the dwellinghouse at 1/2 9 Aird, Sleat, Skye, he being the tenant of the croft at that address to which, he claimed, the site of the dwellinghouse pertained. In the Statement of Facts appended to his application the petitioner averred that since Whitsunday 1993 he had been tenant of the croft 1/2 9 Aird, Ardvasar, Sleat, which was recorded in the Register of Crofts as Croft No. 11008. The site of the dwellinghouse was on a feu which had not been decrofted or resumed. The proprietors of the site of the dwellinghouse were the Daggs who, the petitioner maintained, were, in terms of the crofting legislation, landlords of that part of the croft of which he was tenant. Later in his Statement of Facts the petitioner, under reference to section 12(2) of the Act, however, averred that the site of the dwellinghouse pertained to the croft of which he was tenant. Section 12(2) provides:

I have to say that it is not entirely clear from the application whether or not the petitioner claimed to be the tenant of the site of the dwellinghouse - that is to say, it was on the croft he tenanted or, whether it merely pertained to the croft which he tenanted and which did not include the site.

[2] I should add that throughout all the proceedings the petitioner appeared on his own behalf and was not legally represented. His hand-written application was intimated to the Daggs, Highland Council, the Crofters Commission, who are the present respondents, and the Clan Donald Lands Trust who are the proprietors of that part of the croft which was not conveyed in 1972 when the dwellinghouse and site were conveyed to one of the Daggs predecessors in title. Unfortunately, the site upon which the dwellinghouse stands was not decrofted when it was sold in 1972. In the Land Court proceedings answers were lodged on behalf of the Daggs, Clan Donald Lands Trust, and the present respondents, who in the Land Court proceedings are the fourth respondents. No appearance was entered by Highland Council. The Crofters Commission's answers were lodged on 21 October 1996. Supplementary answers and pleadings were lodged by the Crofters Commission on 13 March 1997, immediately following the crucial Directions which they made on 11 March 1997 in relation to an application by the Daggs, to which I will return later in this judgment.

[3] On 28 October 1996 the petitioner submitted a decrofting application to the respondents to decroft the site of the croft house and garden ground pertaining to 1/2 9 Aird, Sleat, Isle of Skye, as a crofter who was proposing to acquire croft land or the site of the dwellinghouse on or pertaining to his croft in terms of section 25(4) of the Act. This application, I should say, was consistent with the application he had made to the Scottish land Court on 21 August 1996, and, as I have already said, the respondents were then parties to the proceedings in the Land Court. The respondents replied to the application of 28 October 1996 by letter dated 20 November 1996 which was signed:

In that letter the respondents said that they were unable to process the petitioner's application because he was not currently entered in the respondents' register of crofts as either the tenant or the owner of the area in question. Only the registered tenant or owner of an area of croft land could apply for a decrofting Direction. In short, as counsel for the petitioner submitted, the petitioner's application was dismissed as incompetent, an action, it appeared, which was taken by a member of the respondents' staff. The letter went on to inform the petitioner that the respondents were currently processing a decrofting application submitted by the Daggs in respect of the same area. And the petitioner's attention was drawn to an advertisement in the West Highland Free Press published during the week ending 8 November 1996.

[4] The petitioner had already seen this advertisement. According to the advertisement, if anyone considered that the Daggs' proposals for decrofting would adversely affect his crofting interests or that of the local crofting community, he was invited to make written representations to the respondents. By letter dated 19 November 1996 and received by the respondents on 22 November 1996 the petitioner represented that the proposed decrofting of the site of the dwellinghouse would, in accordance with the terms of the advertisement, adversely affect his crofting interests and that of the local crofting community. On 6 December 1996 the respondents received a copy of the petitioner's replies to their answers in the Land Court action. In his replies the petitioner averred inter alia that there was one dwellinghouse and only one on the croft. There only ever had been one on the croft since 1896. The proprietors of the dwellinghouse, namely the Daggs, were merely landlords of a vacant part of the croft. He also pointed out that he had objected to the proprietors' decrofting application for the reasons he gave.

[5] From the procedure which they employed it appears that the respondents treated the Daggs application under section 25(1)(a) of the Act, and not under section 25(1)(b), as they might have done. That being so, they were bound to apply section 25(2) of the Act which provides that:

It also meant that they had to advertise the application in terms of section 25(6). That subsection also provides that

Counsel for the respondents submitted that no person other than the applicant could request a hearing, and that if they did not, no one else could have a hearing. I do not think that that construction is correct. In my view, the applicant has a statutory right to a hearing if he wishes it, and the Crofters Commission have discretion whether to afford anyone else a hearing. Thus, the respondents had the power, if they thought fit, to grant the petitioner a hearing. They did not, of course, grant the petitioner that privilege. This matter also has relevance in relation to the respondents' own rules and the application of their rules in relation to the petitioner.

[6] In his petition the petitioner avers that some time in December 1996 he telephoned the respondents and spoke to a member of their staff about the Daggs' application. The member of staff assured him, having, as she said, spoken to the respondents' solicitor's secretary, that the decrofting application was not to be considered before the Land Court application was determined. In respect of that assurance he took no steps to prevent the respondents taking a decision on the decrofting application, although he had been considering an application for interdict. Some support for this is to be found in an affidavit of Ian Andrew McFatridge, a solicitor and friend of the petitioner. It is, however, strongly disputed by the respondents and, since this is a question of fact, it can only be decided at a second hearing. I should, however, point out that in December 1996 it was not known when the Land Court would sit to hear the petitioner's application. It was on 19 February 1997 that the Land Court fixed a hearing for 24 April 1997 at Portree Sheriff Court. Being parties to the action, the respondents would have been aware of that hearing date, I assume, soon after it was fixed. There is no admission in Answer 5(d) that when the respondents met at a plenary meeting on 27 February 1997, they knew that the Land Court hearing was fixed for 24 April 1997. I would, however, be very surprised if the Land Court order dated 19 February 1997, which was certainly intimated to the respondents, was not known by the respondents on 27 February 1997 when they met in plenary session. Strictly, however, I can say no more than that.

[7] The respondents at that meeting would no doubt have had before them the Area Assessor's Report of 20 November 1996 and the Agricultural Office's Report of 21 January 1997. The decision which they reached is to be found in their minute for that date which is headed "Decrofting". It sets out the names of the croft, the landlord and the applicants, together with the areas to be decrofted. These areas are described as "house site and garden ground extending to 0.054 ha. and part of the croft extending to 0.0199 ha." It then proceeds as follows:

[8] It has been accepted by the parties, and indeed by the Land Court, that the respondents gave effect to their decision by a Direction dated 11 March 1997 in terms of section 24(3) and 25(1)(a) of the Act. It seems to me, however, from a consideration of the productions in this case, that on that date the respondents issued two Directions, one in relation to each area of land to be decrofted. Only one of the Directions has, however, been produced, which does not relate to the dwellinghouse. Be all that as it may, two days after making the Directions the respondents were able to lodge supplementary answers in the Land Court action referring to their Directions and adding the following plea:

[9] This plea, the respondents' solicitor successfully argued before the Divisional Court of the Land Court which upheld the plea on 12 June 1998 and dismissed the petitioner's application. The petitioner appealed to the full court which, on 10 June 1999, ordained him to find caution. The decisions of both courts set out fully the history of the croft, at least since 1964. I have specially not set that history out in this judgment because in this action concentration is upon the actings of the respondents and in particular the Directions given under their seal on 11 March 1997 to decroft the parts of the croft which were the subject of the Daggs' application. In effect, what the Land Court has said is that they ceased to have jurisdiction once the Directions were made. If the Directions were set aside, as the Chairman said on page 12, the petitioner could come back to court and renew his application to be allowed to purchase the house site. I note that the Chairman went on to say at page 13 that the court considered that the strength of the legal argument against the appellant's case on the merits was a strong one. That was also the view of the Divisional Court, but, of course, these expressions of opinion are obiter. I may say that in reaching the conclusions which I have, I remain wholly unaffected by these observations upon the petitioner's case in the Land Court.

[10] Counsel for the petitioner attacked the respondents' actions in effect upon three grounds - firstly, on procedural grounds because the respondents did not allow the petitioner a hearing in terms of their rules; secondly, because their actings were unreasonable in the Wednesbury sense; and thirdly, because they breached the requirements incumbent upon them in terms of section 25(2) of the Act. I hope that I may be forgiven for saying that there is one feature of the respondents' actings which is so glaringly obvious and, indeed, alluded to by the Land Court Chairman, Lord McGhie, that I would have expected it to have been in the absolute forefront of the petitioner's case.

[11] The respondents in the very opening part of their own rules characterise themselves as an administrative body whose function is defined in the Act. They state that in the exercise of certain of their functions they are required to act in a quasi-judicial or tribunal capacity. They were, therefore in this case, bound to act in accordance with the principles of natural justice and of fairness in particular. As Lord Bridge said in Lloyd v. McMahon 1987 1 A.C. 625 at pages 702-703:

The respondents were not bound to decide the Daggs' application within any particular time period. They knew by the time they issued their Directions on 11 March 1997, if not by the time they reached their decision on 27 February 1997, that the Land Court had appointed a hearing in the petitioner's action for 24 April 1997. They were the fourth respondents in that action. I cannot sufficiently overemphasise that they were parties in that action. They knew that if they decided to decroft the areas which were the subject of the Daggs' application, that would stop the petitioner's action in its tracks, as in fact happened, because the Land Court would no longer have jurisdiction. That they were well-aware of all this is obvious from the fact that two days after issuing their Directions they were tabling a plea in the Land Court action that since the areas had been decrofted, the action was incompetent and that it should be withdrawn or dismissed. It could quite reasonably be observed that they wasted no time in adding that plea to their case, which plea was based solely upon their own actions. The question has to be asked why they did not await the outcome of the Land Court hearing on 24 April 1997, a mere six weeks away.

[12] Counsel for the respondents submitted that there was nothing in the Act which gave the respondents' power to sist or postpone the Daggs' application. She pointed out that if the respondents were satisfied, they had to grant an application. I find this response at best disingenuous, and at worst simply wrong. As I have already said, the respondents were not working according to any particular statutory time table. Further, as counsel for the petitioner said, they had the power under section 53(1) of the Act to make a reference of any question of fact or law arising under the Act to the Land Court. They knew that the petitioner's application to the Land Court was intimately bound up with the Daggs' application. So, if they felt that they had no power to stay proceedings before them, they could have used the power under section 53(1) to ensure that the matters raised by the petitioner were decided by the Land Court before any decision to decroft was reached.

[13] The Chairman of the Land Court said in the Note appended to the court's decision of 10 June 1999 on page 12:

The view expressed by the Chairman does not in the least surprise me. The respondents in my opinion acted wholly unfairly in reaching the decision to decroft in advance of the Land Court hearing which was only a few weeks away. No tribunal, exercising such quasi-judicial powers as they were, and acting fairly and reasonably, could have acted as they did, both on 27 February 1997 and 11 March 1997. For these reasons I will grant the Order primarily sought provided that both Directions issued on 11 March 1997 are made the subject of the Order. For the avoidance of doubt and as requested by counsel for the petitioner, I will order the production and reduction of the decision reached by the respondents at their meeting of 27 February 1997.

[14] That in itself is sufficient for my decision, by I must go on to consider what was the petitioner's primary submission. Counsel for the petitioner maintained that the way in which the respondents treated the petitioner's representations against the Daggs' application breached their own rules. Contrary to what the respondents' counsel argued, we are here not dealing with the specific rules which apply to decrofting (Rules 31 to 35) but with the general rules applicable to all situations. The general rules founded on were, in particular, 1(b) and (c). They provide as follows:

Throughout, it must be remembered that the petitioner was a party litigant and, I suggest, there is an obligation upon bodies such as the respondents to ensure that an individual like the petitioner understands what the respondents' require. So, if an objector says that the proposed decrofting of the site extending to 0.054 hectares (the site of the dwellinghouse) will affect adversely his crofting interest and that of the local crofting community, I would have thought that the respondents would respond by asking him to specify at least how it would affect adversely his crofting interest. Instead, what they said in their letter of 10 September 1998 to the petitioner (No. 6/7 of process) was:

The fact, of course, is that the respondents in this case knew full well, from the pleadings in the Land Court action and the petitioner's own application to them, what he meant in his written representations or objections. I agree with counsel for the petitioner who described this response as disingenuous. I think it is also misleading, if not specious.

[15] There is no doubt that the petitioner had an interest in the Daggs' application. That being so, he should have been given a reasonable opportunity to present his own case fully to the Commission. He was not given that. The expression "every person who puts forward a case in any such application or other proceeding before the Commission" I think is wide enough to comprehend the petitioner's written representations. If that is so, he was not given an opportunity to ask for a hearing and, since the Commission proposed to arrive at a decision adverse to his case and he had no right of appeal available, he should have been given notice of the respondents' provisional decision and its grounds and an opportunity to make further representations in writing, and also to ask for a hearing. In my opinion neither of these rules was observed by the respondents in the petitioner's case. In my judgment this is further evidence that they did not act fairly in relation to the petitioner and provides further grounds for granting the amended orders sought.

[16] In all the circumstances I do not require to consider the petitioner's final submission that in any event the respondents did not observe the terms of section 25(2) while paying lip service to them in their Directions. Were I not well-founded in what I have decided thus far, I would have allowed a second hearing restricted to those averments made by the petitioner and the phone call he made to the respondents' office in December 1996, which in my view are sufficiently specific to go to proof. There is no doubt about their relevance.

[17] In granting the orders ultimately sought I will sustain the petitioner's third plea in law.