Land Court shocker as evidence not required

There has been a development in the battle for the rights to develop wind farms on the common grazings land around Stornoway. The news came, at the end of the last week, that the Scottish Land Court had ruled in the case of the four townships who were appealing the Crofting Commission’s decision to reject their applications to develop wind turbines.

The decision did not go our way and there has been much shock and disbelief that the Land Court could accept the Stornoway Trust’s position – that the crofters’ plans would be to the Trust’s detriment – without putting that claim under the microscope and scrutinising it very closely indeed.

The crofters chose not to go public on Friday and there was some dismay – though no great surprise – at the tone and content of the Stornoway Trust’s statement today, crowing over the decision and once again putting the boot into the crofters. Gracious it was not.

That obviously necessitated a public response from the crofters – shared in full below and which will bring you all up to speed with where we are now. It’s set out like a news story, because that’s what it is.

If you have any thoughts or points you would like to make, in response to the ruling and/or the campaign in general, it would be great if you could leave them in the comments section as all feedback and support is hugely appreciated by those leading this fight. On their behalf, can I say a huge THANK YOU for all the support they have received so far.

The story…

Crofters in four Lewis townships are considering taking their fight to develop community wind farms on their common grazings to the Court of Session. The townships are Sandwick North Street, Sandwick East Street, Melbost and Branahuie and Aignish.

The battle to develop a number of community-owned turbines on grazings land outside Stornoway has been opposed by Lewis Wind Power, a private consortium led by EDF, the French-owned multinational, which has a 70-year lease from the landowner, Stornoway Trust, to develop a 36-turbine scheme on the same land.

Consideration is being given to taking the matter to the Court of Session following a ruling by the Scottish Land Court last week that it would not ask the Crofting Commission to review its decision in 2018 to reject the townships’ plans following the acceptance of late objections from the Stornoway Trust.

In 2016 the townships submitted their four applications for developing community turbines to the Crofting Commission under Section 50B of the Crofting Act but their applications were ruled invalid by the Commission after the Stornoway Trust submitted objections which were, in some cases, nearly 18 months late.

‘MATERIAL DETRIMENT’

The Commission said the applications were invalid because it had accepted the landlord’s position that the community turbines would “impede or stop” the larger EDF scheme from going ahead and that this would cause the landlord “material detriment”.  

The crofters point out that the Commission gave them no opportunity to respond to this argument, despite it being late, nor had the Commission taken any other evidence which would allow them to evaluate whether the landlord’s argument was accurate or not.

The crofters therefore appealed to the Land Court to get the Commission to reconsider its decision and take evidence from the crofters before coming to a final judgement. 

However, the Land Court has refused to ask the Commission to review its decision.

Rhoda Mackenzie, the spokesperson for Sandwick North Community Energy, is astonished the Land Court has accepted the landlord’s claim of “material detriment” on the face of it without any evidence.

“It’s unbelievable. They never proved how it was detrimental to the landlord. It’s hard to understand but I think credence was given to the fact it was the Stornoway Trust, because they are supposed to act in the best interests of the community.

“I don’t know if the Land Court’s decision would have been the same if it was a private landlord they were dealing with. If the Duke of Buccleuch had said ‘it’s detrimental to my interests’, would that also have been acceptable to the Land Court without evidence?

“I couldn’t see any way that the Trust were going to win that argument legally, so I was really shocked by the ruling. I didn’t consider for a minute that they could win that without evidencing their claim. ‘We have said so, so that’s it’ – that’s the kind of ruling this appears to be to us.”

Rhoda added: “We obviously do not agree that our proposals are to the landlord’s detriment. Our proposal would replace some EDF turbines with community turbines which would pay the landlord the same rent while putting much more money back into the whole islands community.

“In the specific case of Sandwick North, the community I represent, our application was for just one community turbine to replace one of the EDF turbines.   

“I don’t know how anyone could believe that our turbines would in any way ‘impede or stop’ the remaining EDF turbines from progressing – and who pays the land rent to Stornoway Trust should make no difference to them.

FACE VALUE

“But the Court’s decision means that Sandwick North is not allowed to make that case to the Crofting Commission and that the Commission is allowed to simply accept the landlord’s claim at face value. This does not seem right, especially when you consider that the Factor of Stornoway Trust is a commissioner with the Crofting Commission.

“We are extremely disappointed by the Land Court judgement and are considering our options, including the possibility of taking a special case to the Court of Session.

“We did not ask the Land Court to consider our original Section 50B applications. We asked the Court to require the Crofting Commission to allow us to make representations on the landlord’s objection which would then allow the Court to make a decision based on evidence instead of just accepting the landlord’s objection on face value. It feels like we have been denied natural justice by not being allowed to respond to this objection.

“We’ve got a statutory 21-day period to decide if we’re going to appeal the Land Court’s ruling and that decision will have to be taken collectively by the township, as all the decisions have been, and we’ll need to take legal advice on the points of law before we decide whether we’re going to appeal.”

The piece of law used by the crofting townships when they made their original development applications to the Crofting Commission was Section 50B, which had been inserted into the Crofting Acts by successive Scottish Governments, both Labour and SNP.

Section 50B was created precisely to allow crofting communities to make sustainable use of their common grazings land without needing the consent of the landowner. 

Rhoda questioned what was the point in Section 50B existing if landlord objections were not scrutinised in detail. 

“The Land Court’s decision in our case seems to make Section 50B redundant. If this ruling isn’t examined more closely, what community will ever go through this Section 50B development process again? Our experience so far, when we were forced to wait years for a decision and then not even allowed to challenge the landowner’s objection, is that this is an unfair and futile exercise.

“If this decision is allowed to stand, Section 50B might as well be crossed out of the Crofting Act. The Land Court’s ruling has given the landowner a veto and that is a blow to crofting communities right across the Highlands and Islands.”

Rhoda also rejected the Trust’s description of the crofters’ actions as “obstructive” and the suggestion that they had been “persuaded” of their legal position.

“There were 116 objections to the Stornoway Wind Farm Section 19a application and they didn’t all emanate from these four townships.

“If I believed the Stornoway Trust was acting in the best interests of the community, I would never have taken this to the Land Court in the first place.

“We were acting in the interests of 90 per cent of the shareholders of the township on whose grazings this turbine is going to be built.

“The Trust, in their statement, are insulting the intelligence of the crofters and their ability to make up their own minds based on the evidence that’s available to them. None of us recognise the figure of £200,000, put forward by the Factor as supposedly being what some of the townships will get if the LWP scheme goes ahead. 

ANTAGONISTIC

“The highest basic annual payment proposed to any township from that scheme is £132,000 and that is to one of the townships trying to put up community turbines, which would be much more profitable for the Western Isles community than the LWP / EDF one.”

“The Stornoway Trust’s actions have been antagonistic and even the very tone of their press statement is antagonistic towards any crofter in any township wanting to pursue any development. It indicates what crofters and townships are up against with them as their landlord.

“By their very tone, they kick off again against the townships. At the very least, we can evidence the volumes of people who support our project and who oppose EDF and LWP – but the Trust can’t evidence anything.”

There ends the news release. But here’s a few more points made today, which are worth sharing.

One comment: “The Stornoway Trust chairman should not be commenting on anything to do with the four townships, as he has a vested interest in his own development in Barvas. I think it’s a bit rich coming from him…”

Another comment: “Members of the public have long forgotten that the sum ‘negotiated’ and accepted by the Trust as Community Benefit Payment was £525,000 p/a (from a multi-million pound project). The Factor declared again and again that it was ‘a wonderful offer’ (his words). This was later increased to £900,000 as a result of protests from the townships.

“The point is that the communities would have been far worse off had they accepted this original sum as a direct result of an incompetent Trust that was out-manouevred at every turn by Amec and EDF. What on earth were they thinking of? How far would £525,000 go these days when it’s spread throughout the Stornoway Estate? The Trust should have publicly thanked the townships for helping to almost double the amount rather than castigate us at every turn for ‘endangering’ their beloved project. Of course, even £900,000 is pathetically inadequate…”

MILLIONS

A third comment: “The Stornoway Trust would receive exactly the same rental from community turbines as LWP, but the community pot would be so much better off due to only £900k coming from the LWP 36 turbines (which is similar to the income from just three community turbines on North Street common grazings already), as compared to the 100 per cent  income from community turbines going back in to the community to the benefit of the whole of the Western Isles.

“These four crofting townships will not gain anything additional financially, more than any other township, whether turbines are erected by LWP or community themselves. It is the wider community that are to be the losers if The Stornoway Trust with LWP have their way.

“These four common grazings committees, on behalf of their shareholders, should be acknowledged for standing up not only for their own townships but the local (and wider) community at large. LWP are going to be the ones taking millions away from these islands, rather than trying to get this once in a lifetime / once in a generation opportunity to do something to reinvest in these island communities.

“This Land Court decision has detrimental repercussions for the whole of the Crofting Counties.”