Townships call for reform of croft law after court rejects wind farm application appeal

The crofting communities of Sandwick North Street, Sandwick East Street, Melobost and Branahuie had applied under Section 50b of the Crofters (Scotland) Act 1993 to the Crofting Commission to construct their own wind farm on areas of common grazing land that the land-owner, the Stornoway Trust, had already leased to Lewis Wind Power for the same purpose.

The Crofting Commission turned-down the townships’ application on the basis that approval would be detrimental to the interest of the landlord, and that decision has now been upheld by the Court of Session.

In a joint statement, the townships expressed their disappointment at the court’s decision, and in a statement their spokesperson said:  “The law needs to be made fit for purpose for the economic and social needs of the 21st century, not the Victorian attitudes and priorities of a bygone era.”

Earlier, the Stornoway Trust had welcomed the verdict in the case, and Trust Chairman, Norman A Maciver, said: “In this case, the landlord is the community and so, approval of the 50b application made by these four townships would have been detrimental to the Stornoway Trust Estate as a whole, and to the wider interests of the Western Isles. 

“We are grateful to the Court of Session for coming to such a speedy conclusion in this matter and I hope that the townships, having had time to reflect, would not now want to damage a project which will ultimately benefit not only their own shareholders but the whole community.”

Iain MacIver, Factor of the Stornoway Trust, said the the Trust was “relieved that the Stornoway Wind Farm project can finally now move forward”. 

He added:  “At this present moment, the Western Isles economy is in need of as much good news as it can get. It has always been the Trust’s belief that our close collaboration with the Comhairle, and in the partnership between ourselves as landlord, and Lewis Wind Power as developer, we have the best chance of creating meaningful development in this area: development which will have a positive impact on the Estate in its entirety.

“I believe this is not just good news for the Trust, but ironically also for the appellants, who, in my view, would have been exposing themselves and those they represent to considerable risk had they been successful in their ill-advised actions. As things currently stand, however, if the project proceeds as planned, they too can look forward to a share of rental revenues, which to them will be worth in excess of half a million pounds per annum.”

In their statement, the townships also welcomed what they described as the Court’s “perceptive and helpful comments” in its report of its decision and said that they hoped that the court’s comments “will be studied and acted upon by Members of the Scottish Parliament and by Government Ministers.”

In a postscript to its decision the court said that the case  identified “general concerns about the development of what might be underused croft land, including common grazing”, and said: “The needs of the crofting communities are not identical to those in the late Victorian era.”

“As with other applications to the respondents [the Crofting Commission]”, the court said in its postscript, “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 development would require section 50B(2)(b) to be repealed.”

The court concluded that since the landowners’ property rights would “almost inevitably be interfered with by the superimposition of an alternative development”, the need for the incorporation in any amending legislation of a scheme for compensating the landowner for any loss would become apparent. 

The Townships’ spokesperson commented: “Whereas the Crofting Commission has a clear duty under the Act to reach its decisions on applications made to it by balancing the full range of affected interests, including the interests of the landowner, the estate, the crofting community and the wider public interest, applications made by crofting communities to develop their common grazings are uniquely subject to what our case has shown is an effective veto by the landowner alone, without consideration of the other interests.

“This veto is not right or sensible. Moreover, as it affects half a million hectares of common grazings in the Highlands and over 500 crofting communities, it is crippling the potential of crofting communities to use their common land for sustainable development such as community energy projects that we wanted to pursue.

“We believe the Court was absolutely right to say that our case has highlighted a real problem in the Crofting Acts, and we believe it is now up to the Scottish Parliament to reform the law along the lines indicated by the Court. 

“Section 50B(2) must be repealed to remove the landowner veto so that future development proposals that have come from crofting communities can be considered by the Commission in the normal, balanced way, taking proper account of the interests of all the parties involved.”