On the eve of the Scottish Land Court hearing into the case of Lewis Wind Power versus The Crofters, I have brought in a guest blogger with a special interest… Scots land law.
And he is going to be looking at one particular topic of great interest to many of us in Lewis and others who are watching this case … the lease given to LWP by Stornoway Trust to develop their controversial and much-contested wind farm.
Tonight’s guest is Lewis Kermack, a retired solicitor with extensive experience in the Land Court and the man who appeared for the crofters of Melbost and Branahuie last week in their dispute with Highlands and Islands Airport (HIAL) over the rights to land at Stornoway Airport.
Lewis has also been closely following the battle between the crofters of the four townships and multinational EDF Energy (who make up Lewis Wind Power along with partners Wood Group and who have a lease from Stornoway Trust) on the question of who has the right to develop renewables projects on common grazings land.
OBJECTIONS
This comes before the Land Court for the first time tomorrow, when it sits in Stornoway for a two-day hearing on LWP’s Section 19A application to develop 36 turbines on these grazings – an application that was the subject of more than 200 objections.
This was an unprecedented amount of objections and is the reason the Land Court is holding a hearing, because they are not held routinely on Section 19A applications as matters of course.
With that in mind, I thought now was as good a time as any to take a closer look at that lease between Stornoway Trust and Lewis Wind Power, the front company for the developers.
So, here, is a piece written by Lewis which does that very thing. He wrote it earlier this year and copies were surreptitiously being passed around Stornoway at the time – I was even given a copy at Beavers, by another Scout leader who said she had no idea where it had come from; just that her boss had passed a copy to her – but now Lewis has agreed to me carrying it on the blog and to be identified as its author.
Thank you, Lewis, for allowing me to publish your article. Here it is…
In granting a lease to Stornoway Windfarm Ltd, the Stornoway Trust have agreed to surrender their status as crofting landlord to that company, which is wholly owned by EDF and Wood Group over the large area of the Stornoway General and the common grazings of eight townships actually leased to them.
In addition, in respect of a far larger area of Stornoway Estate, the Stornoway Trust cannot agree to an apportionment, enlarge a common grazing or create a new one, grant or renew a lease or sell ground without getting the consent of the owners of Stornoway Windfarm Ltd.
The Trust have to oppose any application to do any these things in a manner directed by those owners, if ordered to do so. Furthermore that state of affairs will continue until 2043 at least, and may continue until 2075. The details follow in the article below.
Most crofters within the Stornoway estate would answer immediately that their landlord was the Stornoway Trust, who took over the estate when it was gifted by Lord Leverhulme to the people in 1924, run by a body of trustees elected by the people to run the estate on their behalf.
However, in 2003, those Trustees granted a lease to a company then known as Lewis Wind Power Ltd and now known as Stornoway Windfarm Ltd. That company is now wholly owned by EDF plc and the Wood Group. The lease was extensively varied in 2010, 2011, 2016 and 2017 and now runs for 45 years from November 2003, with an option, in favour of the company, to extend the lease for a further 35 years thereafter.
Accordingly, both the landlord and the tenant of the lease consider that the lease has commenced and the tenant has entered into possession, even though they do not possess to any meaningful extent and will not do so, unless the Land Court agrees that the interests of the tenant trump the interests of the crofters in the area of the lease.
The lease, as revised, contains a number of unusual and surprising clauses, which have clearly been meticulously drafted exclusively for the purposes of this lease.
APPORTIONMENTS
In it, the tenant seeks to secure rights not only over the ‘leased area’ (the area on which they propose to carry out their wind farm scheme – if the Land Court consents – and which is currently an area covering the whole of the Stornoway General as well as the apportionments of many townships and appears to extend to 1700 hectares), but also over a far larger area, termed “the Landlord’s Property”, the exact extent of which is unclear without reference to maps, but which covers many thousands of acres of the estate administered by the Stornoway Trust.
The surprising assertion in the lease is that, within the leased area, the Stornoway Trust have agreed with Stornoway Windfarm Ltd that Stornoway Windfarm Ltd is the landlord of the crofters and the Stornoway Trust is no longer the landlord of the crofters. Therefore, in terms of this agreement, and without any notification of (let alone consultation with) the crofters, the crofters have lost their community landlord, which they own and control, and gained a corporate landlord, owned by multinational companies.
Furthermore, this has been the case since November 2003.
If anyone doubts the import of this agreement on the common grazings, then they need only look at the terms of clause 7 of the revised lease.
First of all, in respect of the ‘leased area’, the Stornoway Trust give a number of warranties and undertakings to Stornoway Windfarm Ltd “notwithstanding that the Tenant is in possession of the Lease Subjects and is thereby the landlord of the Lease Subjects in terms of the 1993 Act [the Crofters (Scotland) Act 1993]”.
Furthermore, clause 7.5 states “The Tenant will enter into with the Landlord such arrangements as are necessary to enable the Landlord to perform its obligations under clause 7.4, those arrangements to be on terms to be agreed between the Landlord and the Tenant (both of whom will act reasonably) and giving authority to the Landlord to exercise the rights of a landlord in terms of the 1993 Act or in respect of any contractual obligation owed by a crofter including the right to receive and in consideration of its obligations under clause 7.3 to retain the rents from the Crofters; the right to review or apportion such rents and the right to consent to assignation and succession”.
LEVERHULME
In both these passages, the capital “L” landlord may be the Stornoway Trust, but this is merely a label as the real, small “l” landlord in terms of the agreement is the tenant in this lease, Stornoway Windfarm Ltd.
Therefore, the right of the Stornoway Trust to act as landlord of the crofts no longer derives from the gift of Lord Leverhulme, but by agreement with two multinationals.
When the croft rents were doubled a couple of years ago, that happened because EDF and the Wood Group agreed to it. The rent paid by a crofter only goes to the trust if EDF and the Wood Group agree to it. EDF and the Wood Group have a veto on whether a crofter can assign his croft or leave it to his family.
Moving on, in respect of the “Landlord’s Property”, which is a far larger area than the already large “Lease Area”, clause 7.4 gives Stornoway Windfarm Ltd very extensive rights over crofters.
In terms of that clause “the Landlord shall”:
- “Notify the Tenant of any application for apportionment within the Landlord’s Property as soon as such application is notified to the Landlord and shall timeously make such representations to the Crofters Commission in respect of any such application as the Tenant (acting reasonably) may require”;
- “Not agree to enlarge any common grazing existing at the Date of Entry within the Landlord’s Property or create any new common grazing within the Landlord’s Property without the prior written consent of the Tenant (acting reasonably)”; and
- “Notify the Tenant of any application to buy part of the Landlord’s Property as soon as such application is received or notified to the Landlord and shall timeously make such representations to any person or statutory authority in respect of any such application as the Tenant (acting reasonably) may require”.
It is by these sub-clauses that the Trustees have given away responsibility to EDF and the Wood Group for their crofting estate within the “Landlord’s Property”.
That is even beyond the large area which Stornoway Windfarm Ltd currently lease.
Whereas crofters might make an application to the Stornoway Trust for, say, an apportionment of their common grazings (a right under the 1993 Act) in the expectation that the trustees they have elected will judge fairly between the rights of the crofter and the interests of the other beneficiaries of the trust, in fact, the question of whether or not the crofter receives an apportionment is whether EDF and the Wood Group agree to it.
If the situation arose that the Stornoway Trust wished, for instance, to sell a piece of land at Bennadrove to the person who occupied it and EDF or the Wood Group did not wish the Trust to sell it, the wishes of EDF or the Wood Group would prevail and the Stornoway Trust could only proceed if the Stornoway Trust took Stornoway Windfarm Ltd to court and the judge agreed that Stornoway Windfarm Ltd were acting unreasonably.
UNCERTAIN
However, as numerous cases have shown, the meaning of the isolated expression “acting reasonably” is so amorphous that only the desperate would go to court, because the outcome would be so uncertain.
Even though the Stornoway Trust have agreed with Stornoway Windfarm Ltd that the company and not the Trust are the landlords of the crofters within the “Lease Area”, that is probably not a correct statement of law, unless the crofts themselves fall within the “Lease Area”. This is because, since 2003 the law has been clarified and it is now clear that the crofters do not hold the common grazings in a tenancy from the owner of the common grazings, but rather they have grazing rights as a pertinent of their crofts.
In fact, if one person owns the croft and another owns the common grazings, the owner of the croft can give the crofter a title to the crofter’s apportionment on the common grazings without the consent of the owner of the common grazings. However, the Stornoway Trust has made the agreement and, by the other clauses, the Stornoway Trust could not give the crofter an apportionment or sell it to him without the agreement of EDF in any event.
CONTROL
Even if the status of landlord is wrongly attributed on Stornoway Windfarm Ltd, the obligation on Stornoway Trust to get the consent of Stornoway Windfarm Ltd before selling land or granting apportionments or enlarging common grazings has been contractually constituted and would, undoubtedly, be enforceable by Stornoway Windfarm Ltd in any court.
It may be worth mentioning that, in the past four years, EDF sold eight of its existing windfarms including three to the China General Nuclear Power Company, owned by the Chinese government. It would not be surprising, therefore, if EDF sold their interest in Stornoway Windfarm Ltd if or when the windfarm is constructed.Whoever purchases that interest will be as entitled as EDF to exercise control over the Stornoway Trust and, more importantly over the crofters. Such an investor could not be blamed for looking only to his, her or its own profit. Will the power given to the tenant under this lease be exercised in the future even as benignly as it is currently exercised by EDF?
In 2010, Stornoway Trust gave to Stornoway Windfarm Ltd extensive rights over its agricultural tenancies within the “Landlord’s Property” and outside the “Lease Area”, but that is another story.
• Pictures of Stornoway, from Gallows Hill, and Lews Castle, courtesy of Sandie Maciver.
