Four crofting townships appealed against the Crofting Commission's refusal to approve their application for a particular use of their common grazings at Sandwickhill North Street in Stornoway. The Commission determined the use as a community-owned wind farm would have been detrimental to the interests of the landowner of the common grazings. In August of this year, the Inner House of the Court of Session heard the appeal by way of a special case stated by the Land Court.
Competing proposals for wind farms
The crofters applied to the Commission (under section 50B of the Crofters (Scotland) Act 1993) for approval of a scheme to use their common grazings to install 21 wind turbines and create a community-owned wind farm.
The landowner opposed their application, as the landowner had separately been in discussions with wind farm operators for some time to develop a 36-turbine wind farm on the common grazings. The landowner had already applied to the Commission for consent for a Scheme for Development under section 19A(1)(a) of the 1993 Act.
The Commission refused to approve the crofters' application, as to do so would have been detrimental to the interests of the landowner in terms of section 50B(2) of the 1993 Act.
The Land Court agreed with the decision of the Commission and stated the case to the Inner House for final determination.
Lack of detriment to landowner essential to crofters' application
Despite a claim by the crofters about possible procedural issues with the Commission's decision, the case essentially turns on the interpretation of section 50B(2) of the 1993 Act.
The main questions for the court were: what set of circumstances can be considered detrimental to the interests of a landowner, and where a detriment is found to exist, can that detriment be weighed against other factors?
Here, it was determined that the landowner would suffer detriment if the crofters' application was approved as such approval would make it impossible for the landowner to proceed with their own wind farm development.
This, in the court's view, amounted to a loss of an economic opportunity to the landowner that was more than speculative.
The landowner had obtained planning permission for the development and had entered into contracts with third parties. Therefore, the landowner had the ability to see the wind farm come to fruition and potentially generate enough electricity to make a substantial profit. To approve the crofters' application to develop a smaller wind farm would prevent the landowner having control of the development and undermine the work the landowner had already undertaken.
Once the detriment to the landlord's interest had been established, this was a silver bullet to the crofters' application. As the Inner House noted, "a lack of detriment was a prerequisite to approval". In terms of section 50B, there is no balancing of factors to be carried out where a detriment is found. Once the detriment has been established, the application for consent must be rejected.
When analysing the provisions of the 1993 Act, the Inner House concluded that this must have been Parliament's intention for the purpose of Section 50B, so that intention must be applied to the statutory provision uniformly. The Inner House's strict interpretation of the 1993 Act meant that there was no circumstantial argument that the crofters could present that would be capable of outweighing the detriment to the landowner's interest. Indeed, as Lord Carloway noted in his judgement, in order for the Commission, the Land Court or the Inner House to be able to assess applications for a proposed use in terms of appropriateness of the development having regard to everyone's interest, section 50B(2)(b) would require to be repealed.
Originally published by Shepherd and Wedderburn, October 2020
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