The Court of Session has upheld decisions by the Crofting Commission and Scottish Land Court to refuse applications for community-owned wind farms on common grazings. The Commission held that the proposals would be detrimental to the interests of the landowners in terms of section 50B(2)(b) of the Crofters (Scotland) Act 1993. The dispute boiled down to the respective rights of the landowner of a common grazing and the crofters in relation to the use of the land. Such matters are regulated primarily by statute.
There were competing proposals for installation of a windfarm on the common grazings in this case. The landowners had leased land to a consortium, Stornoway Wind Power, for the purpose of developing a 36-turbine windfarm on the common grazings. Planning permission for this development was obtained for this development and the landowners applied for consent to use the common grazings for this proposed windfarm under Section 19A of the 1993 Act.
Meantime, each of the crofters with grazing rights separately proposed the development of wind turbines on their respective common grazings to the relevant grazings committees. These were approved by a vote but were subsequently objected to by the landowners based on the detriment to their own proposed scheme, amongst other things. The Crofting Commission found in favour of the landowners, refusing to consent to the crofters' proposals.
The crofters appealed unsuccessfully to the Scottish Land Court and then brought a special case before the Inner House.
Statutory basis for alternative use of common grazings
The judgment contains a useful summary of how the rights of crofters has developed over the years. It notes that the right for a crofter with grazing rights to propose that a part of the common grazing be used for purposes other than the customary uses, grazing or woodlands was introduced by the Crofting Reform etc. Act 2007 (s 26(2)). It was expressly specified that the proposed use must not be detrimental to the interests of the owner (s. 50B) and, at Stage 2 of the passage of that Bill, the Deputy Minister for Environment and Rural Development explained that:
“There has been considerable misunderstanding of the purpose and implications of the section. In the light of some of the more inaccurate comment, it is not surprising that some owners are concerned. This is not a backdoor route to crofting community control of the owner’s interests in common grazings. … No one will use the provision to build houses or wind farms on grazings ..."
Although the crofters did make some interesting submissions, Lord Carloway ultimately construed the case as a matter of statutory interpretation and held that the absence of detriment to the landowner is a necessary condition for approval for the change of use for common grazings. He found that the process that the crofters were seeking to use specifically could not be used to build wind farms on grazings if the landowner objected. Yet that is precisely what is contemplated in these applications.
Whether a proposal constitutes a detriment to the interests of a landowner is a matter of fact and is primarily for the Crofting Commission to determine. In this case, there was no error of law in concluding that interfering with the landowners' larger planned windfarm scheme would be detrimental to the interests of the landowners.
As a postscript, Lord Carloway noted that this case does raise possible concerns about the development of underused croft land, including common grazing. Current legislation does not allow for crofters to determine the most appropriate use, having regard to everyone’s interests in terms of the factors in section 58A(7) of the 1993 Act. If this was to be changed, which would require repealing section 50B(2)(b), there would need to be a scheme for compensating the landowner due to the interference it would cause to their Article 1 Protocol 1 to the European Convention rights (the right to peaceful enjoyment of possessions).
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