In the special case stated by the Scottish Land Court, crofters having rights in common grazings in Melbost, Sandwick and Aignish had their original applications refused because the proposals would be detrimental to the landowners, the Stornoway Trust, who appeared as interested parties.

The appeal was heard in the Inner House of the Court of Session by the Lord President, Lord Carloway, sitting with Lord Brodie and Lord Malcolm.

Conflicting proposals

In 2010, the landowners leased land to a consortium, Stornoway Wind Power, for the purpose of developing a 36-turbine windfarm on the common grazings of the appellants and several other townships. Planning permission for this development was obtained in 2012, and in 2017 the interested parties applied under Section 19A of the 1993 Act for consent to use the common grazings for their proposed windfarm.

Between June and September 2016, each of the appellants proposed the development of wind turbines on their respective common grazings. The proposals were made to the relevant grazings committees under Section 50B of the Crofters (Scotland) Act 1993, and then approved by a vote.

Under Section 58(3) of the 1993 Act, public notification required to be made of the proposals. An advertisement was placed in the Stornoway Gazette, but with no mention of the right to object or the body to whom objections could be sent. The landowners sought to lodge objections in the spring of 2018.

Section 50B(2) of the 1993 Act provides that the use proposed must not be detrimental to the interests of the owner. The landowners’ objection was on the ground that the proposal conflicted with their agreement with SWP and would result in them losing rent. The respondents considered that the appellants’ proposals would prevent the larger development from going ahead and refused the application.

Following an unsuccessful appeal to the Scottish Land Court, the appellants argued before the Inner House that formal validity of an application for approval did not fall to be determined under Section 50B(2) but according to the factors in Section 58A(1). Section 50B’s purpose was to permit diversification of crofting activities with a view to sustainable development, with the end point of that process being the crofters’ decision under Section 50B(6). Section 58A provided the framework for approval by the committee.

The respondents argued they were entitled to consider the validity of a proposal under Section 50B as a preliminary matter, and that the appellants’ interpretation of the law was inconsistent with the property rights of the owner under Article 1 of the ECHR.

Other matters that required consideration were whether a prospective commercial enterprise of the landowner was a relevant interest for the purposes of Section 50B(2) and whether there was sufficient evidence that the appellants’ proposed uses would be detrimental to the interests of the landowners.

Not a backdoor

The opinion of the court was delivered by Lord Carloway. After recounting the history of crofting law reform he considered the purpose of Section 50B of the 1993 Act, saying: “The absence of detriment to the landowner is a necessary condition for approval. In particular, at Stage 2 of the passage of the relative Bill, it was made clear that the new provision was not a ‘backdoor route to crofting community control over the owner’s interests in common grazings’. The provision, it was specifically said, could not be used to build wind farms on grazings, if the landowner objected. Yet that is precisely what is contemplated in the appellants’ applications.”

He continued: “The existence of detriment is not something which goes to the formal validity of the application. That validity will depend upon whether, at the date when it is lodged with the respondents, an application is in proper form. There was nothing wrong with the appellants’ applications in terms of their validity at the time when they were submitted. They simply failed because the landowner demonstrated detriment.”

On whether the landowners’ commercial dealings were a detriment to the application, he said: “The material before the respondents demonstrated that the interested parties’ scheme was one which involved some 36 turbines at locations which included the 21 on the appellants’ common grazings. The interested parties had spent some considerable time in advancing this scheme, including entering into contracts (notably a lease) with third parties, applying for planning permission and making an application for a section 19A consent relative to the grazings.”

He continued: “In the event of obtaining the relevant permission and consent, the interested parties would have the ability to construct a wind farm which they might anticipate would generate significant electricity and, in all probability, a substantial profit, at least if the inter-connector is ever built across the Minch. The respondents have, therefore, a real and substantial commercial development in prospect.”

For these reasons, the appellants were unsuccessful in their appeal.

As a postscript, Lord Carloway added: “It could be said that this case does identify general concerns about the development of what might be underused croft land, including common grazing. The needs of the crofting communities are not identical to those in the late Victorian era. As with other applications to the respondents, it could be left to them to decide upon the appropriateness of the development, having regard to everyone’s interests, in terms of the factors in section 58A(7) of the 1993 Act. That is not permitted under the current legislation. Such a legislative development would require section 50B(2)(b) to be repealed.”