Court points to need for further land reform

Readers… it’s been a long time. So long, in fact, there were times that I wondered if I would ever find my way back – but of course I was always going to. Especially when there is news to explore.

I know there are a good number of people who follow this blog, and my page on Facebook (I no longer do Twitter), in order to be kept up to speed with the Lewis wind farm fight.

There has been a big development in the Court of Session, with a hearing taking place virtually on July 2nd. As I was still in blog hibernation then, I didn’t post anything about it. However, the Court has now issued its judgement – the news came yesterday morning (Wednesday, August 19th). Some of you will already know the outcome but there is an interesting twist to the story.

The Court of Session upheld the decision made by the Crofting Commission, and subsequently sustained by the Scottish Land Court, not to grant applications made by the four crofting townships under Section 50B of the Crofters (Scotland) Act 1993.

The crofters issued a statement tonight in response to the ruling on their bid to develop community-owned turbines instead of the corporate-owned turbines preferred by the Stornoway Trust. (The Trust had given a lease to Lewis Wind Power, led by the French multinational EDF.)

In this statement, a spokesperson for the four crofting communities of Sandwick North Street, Sandwick East Street, Melbost and Branahuie and Aignish (representatives of these townships are pictured above) said: “While we are naturally disappointed at the decision to turn down our appeal, we warmly welcome the Court’s perceptive and helpful comments which they added to the decision and we hope that they will be studied and acted upon by Members of the Scottish Parliament and by Government Ministers.”

In its Decision the Court said: “As a postscript, 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 [the Crofting Commission], it could be left to them to decide upon the appropriateness on 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 Such a development would require section 50B(2)(b) to be repealed.”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 crofters spokesperson continued: “We agree wholeheartedly with that analysis and it is why we took the appeal to the Court in the first place. 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, therefore, 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 revise the law 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.

“The law needs to be made fit for purpose for the economic and social needs of the 21^st century, not the Victorian attitudes and priorities of a bygone era. This simple reform could radically transform the economic potential of our Highland communities and in the coming weeks we will be writing to MSPs to inform them of the issue and to ask for their help.”

So that is where we are. The fact the case has flushed out such a profound problem with crofters’ rights to develop their own grazings is to be welcomed. It seems like Section 50B wasn’t worth the paper it was written on, so it will be interesting to see whether law reform follows. It surely should.

In terms of turbines, Lewis Wind Power and EDF still have challenges to overcome, like their Section 19A legal application for permission, which has attracted a lot of objections, and their current lack of a subsidy under the CfD scheme, but the way is a bit clearer for them.

Tonight, I want to thank you all for the support you have given to the crofters throughout their campaign. It was very much appreciated. They always knew they had community support.

It’s been a good story to write, too. Thanks for following it.

For more stories on this issue, check out the ‘renewables’ category in my blog. To understand more about how this has played out in the courts, and the issue of ‘detriment’ to the landlord, read https://www.hebrideswriter.com/2019/07/23/land-court-shocker-as-evidence-not-required/

The full Court of Session judgement can be read here: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2020csih49.pdf?sfvrsn=0