Crofting, community, commons, and land use: development of common grazings, but on whose terms?

On 19 August, a crofting law case reached its conclusion at the Court of Session. The case (PDF) pitted some crofters against their crofting landlord. The clash related to similar but essentially rival plans for a renewable energy development on land that was traditionally shared by local crofters for grazing purposes.

The headline news is that these crofters’ attempt to use relatively new legislation to allow them to drive forward a wind turbine scheme on common grazings land in the face of an objection from the land owner has been unsuccessful. This defeat of their planned section 50B scheme – named after the relevant section of the crofting legislation – clears the field for the land owner to make use of a different legislative route for the development of those turbines as part of a wider renewable energy project.

Even that headline is quite complicated. With rural tenancy matters in Scotland there is often a lot to explain before you can have a complete picture. This blog post attempts to provide a quick snapshot of the various issues. Apologies in advance for either over- or under-explaining the various issues. Also, in full disclosure-mode, my definition of “quick snapshot” might not be shared by all readers. This post is something of a longread.

Crofting? What’s that again?

Let us begin at the beginning, or at least the beginning of statutory crofting law. Crofting is a system of rural landholding that exists on a legislative basis in the Highlands and Islands of Scotland, with its roots in 19th century land politics and struggles. It established a secure class of tenantry in the traditional Crofting Counties, giving tenant crofters very strong rights indeed against eviction and other courses of action that could otherwise be available to landlords of affected land, and providing a legal framework for the continuance of the crofting system as a whole. Crofts are essentially small farms/holdings that can be used by the corresponding crofter (in compliance with crofting law), without much interference by the ultimate land owner, provided the crofter is using the croft appropriately and complying with the standard conditions of crofting. The historical contribution of crofting to the retention of people in what glibly might be thought of as remote areas of Scotland should not be understated.

In the modern era, it would be fair to say that crofting law cases do not often reach the highest civil court in Scotland (not counting the UK Supreme Court in this hierarchical analysis). Crofting disputes that need to go “to law” will normally be dealt with by a specialist tribunal known as the Scottish Land Court. It is however possible for matters to go beyond the Scottish Land Court and on to the higher forum of the Court of Session in certain circumstances. This was such a dispute.

What was this case about?

This case that made it all the way to the Court of Session involved:

  • crofters from four crofting townships in Lewis;
  • the Crofting Commission; and
  • the Stornoway Trust, as owner of the various sites.

Also involved in the story, but not directly with this particular case, was an entity called Stornoway Wind Power (SWP). Companies House suggests the company with the name Stornoway Wind Power is dormant, but presumably a suitably renamed or stand-in company now acts as tenant. The Court of Session proceeded as if SWP was still on the scene, so I will run with that acronym here.

SWP is the tenant in a lease granted by the Stornoway Trust, for the purpose of developing a 36-turbine wind farm on the common grazings at the centre of this case and the common grazings of several other townships. Some crofters from four crofting townships devised different plans, each relating to areas within the aforementioned wider scheme, involving approximately 20 turbines. To say these plans were “different” is true to an extent, but to do so also glosses over the fact these turbines had identical proposed sites to the Stornoway Trust/SWP plans (see paragraph [9] of the Court of Session judgment). In fairness to the crofters, it might also be noted that the adoption of mirror sites had much to do with planning approval and indeed, I imagine, topography. It might also be noted that the planned crofter turbines were to be locally-owned. I will say no more about such matters here. In this post, I will try to avoid commenting on the merits of any scheme, whether relative to each other, whether compatible with each other, or in general. Those are questions for someone else.

I have mentioned quite a few personalities so far. Even trying to explain who these personalities are in simple terms, not to mention what common grazings are, requires a bit of care and attention. Here is a fuller explanation of the personalities involved in this litigation.

Who was involved?

The townships affected were: Melbost and Branahuie; Aignish; Sandwick and Sandwick East Street; and Sandwickhill North Street. These are all quite near Stornoway, which is the biggest town in the Western Isles, situated in the east of Lewis. Melbost is slightly east of Stornoway, where you will find the Drome, aka Stornoway Airport. Aignish is further east again, over the isthmus known as the Braigh and into Point. (I declare an interest, as a half-Rubhach. I have family connections to Point.) The other two townships are nearer “town”. The legislation that allowed crofters from these townships to get to court will be explained below. In the case at hand, these crofters were the appellants, appealing against an earlier decision of the Scottish Land Court.

Second billing in the court case went to the Crofting Commission. The modern Commission is a statutory body charged with looking after crofts and crofting as a system, in terms of the Crofters (Scotland) Act 1993 (as amended). That 1993 Act is the central pillar of modern crofting law. We will come back to that.

The final dramatis persona was the Stornoway Trust. The Trust is a community landowner that is almost one hundred years old, which owns in the region of 70,000 acres in and around Stornoway, including the peninsula of Point. The Trust was established by a trust deed in the 1920s when the then owner of Lewis, Lord Leverhulme, transferred land in Stornoway and nearby districts to the local community. The constitutional documents of the Trust make it accountable to the community – across a larger community that takes in the crofters who decided to bring this action and also others in the local area – and it has local elections to select its trustees. Someone at the Trust probably knows, or could find out, how many crofts the Trust has within its remit. That is not important for this post, but it will be a significant number. The community land owner status of the Trust is also not of any legal consequence for this post; crofting law does not differentiate between community and non-community landlords. It might, however, be useful background context to the situation at hand.

Common Grazings

Over the years, crofts have been organised into various townships, each of which will have an area of land that can be used by the crofters as a common resource. The crofts on the land of the Stornoway Trust – including the four townships at the centre of this case – follow this model. Such commons, known as common grazings, can be used by crofters from the relevant township.

Traditionally, usage would have been for grazing of animals, peat-cutting and related tasks, and perhaps thatch for roofing. The entitlements of the land owner as proprietor of the common grazing would remain, but be suitably hamstrung by the fact they could not do anything to undermine the entitlements of crofters.

Meanwhile, to avoid overuse or inequitable situations arising amongst the entitled crofters, these areas would be administered by local committees. To those traditional uses, a right was later introduced by statute in relation to the planting of trees on a common grazing, such that crofters would be able to go beyond the previously accepted uses.

In 2007, another, apparently broader, right was introduced. This allowed for other novel developments on a common grazing at the instigation of a local crofter. This right is contained in a new section 50B of the 1993 Act. It does not give crofters a completely free hand. First, such a scheme cannot be detrimental to the current use of the grazing or, more importantly for present purposes, the interests of the landowner. Then, when an application is made to the relevant committee, it must take the proposal forward (with suitable intimation to the owner) then organise a vote on the matter by local crofters. If the vote is in favour of the proposal, an application relating to the scheme is then made to the Crofting Commission. The legislation then sets out a number of things for the Commission to have regard to when an application is made (in section 58A), but as we shall see one of the issues at hand was whether you even needed to get to such a consideration of the factors listed in section 58A(7) if a scheme was indeed detrimental to land owner.

Another point should be noted at this stage. It is also possible for a crofting landlord, who it will be recalled is the ultimate owner of the land, to propose a development of the common grazing notwithstanding the fact that use is inconsistent with traditional usage as grazing, in terms of section 19A of the 1993 Act. Unsurprisingly, being a potentially drastic manoeuvre, such a landlord scheme requires the consent of the Land Court. That consent is also not automatic, and depends upon whether the development: a) is for a reasonable purpose; b) is not unfair [to one member of the crofting community or certain members]; c) provides fair recompense to the crofters; and d) benefits the community financially.

As alluded to above, there was such a section 19A scheme waiting in the wings here, with an application having been made in June 2017 for consent to use nine common grazings in Lewis for the proposed Stornoway Trust/SWP wind farm. (To be clear, the crofters’ scheme had also been on the go for some time as well, but I’ll put that to one side for the purposes of this blog post.) Those nine common grazings comprise the four common grazings under discussion in relation to this section 50B case and another five common grazings where no crofter schemes were brought forward. That application had been sisted pending this appeal. A “sist” is the Scots equivalent to a “stay” (i.e. a pause of proceedings); further detail about the Scots language is available on Wikipedia.

For completeness, three other stages of the section 19A proceedings at the Scottish Land Court prior to that most recent decision are digested online and can be found in the “Significant Decisions” area of the Land Court’s website. In chronological order, you can find:

  • the December 2017 decision, where the Land Court refused to completely stall the section 19A process for the various common grazings whilst the section 50B process ran contemporaneously;
  • the March 2019 decision, which starts to get the section 19A landlord scheme for development rolling (and also makes reference to Land Court orders of 11 May and 10 August 2018, where the number of crofter objectors to the owner’s scheme was whittled down from 231 to 118, by removing 113 of the original objectors for not having the status of a crofter entitled to object, in line with the precedent of Coigach Wind Power Limited v Achiltibuie Common Grazings Shareholders SLC/109/15, decision of 17 June 2016); and
  • the April 2019 decision, which sought to get a special case on a section 19A matter before the Court of Session (a matter that was put on hold until the merits of the overall section 19A case were decided, that decision turning on what Lord Minginish thought was “just and fair disposal” under the Scottish Land Court’s rules) and also allowing an uplift in expenses because the legal matters were pretty tricky (yeah, fair enough actually).

I think that covers all the relevant reported elements of the wider proceedings to date.

To introduce one final legal observation, although not directly relevant to this case, it should be recalled that crofters and those living in a crofting township can associate together to buy all of the land in the township that is under crofting tenure – namely rented crofts and the common grazing – plus certain additional land from a crofting landlord, all in terms of Part 3 of the Land Reform (Scotland) Act 2003. Such a transfer would give the new land owning entity – a crofting community body, accountable to the local community – a right to engage in schemes on a common grazing without trying to rely on section 50B, albeit an incoming crofting community purchaser would either need a section 19A scheme or other form of resumption to ultimately develop the land. That being said, such a transfer would only be able to take place after a local ballot (which would not just be of crofters with rights in a common grazing), where the acquisition was deemed by Scottish Ministers to be compatible with sustainable development and in the public interest, and with a suitable price being paid to the outgoing land owner. The fact that money changes hands in the 2003 Act scheme stands in contrast to a section 50B scheme, which makes no mention of compensation.

That just about sets the scene for our denouement at the Court of Session. Before turning to that, I will quickly note that it can be gleaned from those Scottish Land Court proceedings and the actions of the parties (in preparing and submitting schemes for development) that this overall dispute has been bubbling for a while. I blogged about the legals a little while ago, when I was still working at the University of Aberdeen. In 2019, Annabel Pinker of the James Hutton institute wrote a detailed blog post about the matter, bringing a more anthropological and energy-oriented approach to bear. Rather than revisit the issues raised in those posts here and make an already long post longer, I will simply link to them and use those posts to allow me to focus on this new judgment.

Oh yeah, the case

Over two thousand words into this blog post (sorry), it is now time to come back to this particular dispute.

This was a first attempt – or four first attempts – to use section 50B of the 1993 Act. The relevant grazings committee for each township followed the process in section 50B and, after local votes in favour of the proposal in question, each submitted a proposal to the Crofting Commission.

The Commission refused to agree to these proposals, notwithstanding a protracted period of not providing an answer, and also after allowing objections to be made by the Stornoway Trust comfortably after a time period that was mentioned in the legislation (albeit the legislation does allow a non-timeous objection to be accepted where there is a good reason it is late: section 58(5A)). This delay was rightly criticised from all directions. Be that as it may, decisions were issued, such that the Crofting Commission felt that the proposals could not clear the initial hurdle in section 50B, relating to detriment to the interests of the owner. That detriment was set out in the objections made by the Trust. I will not revisit this in great detail but in short (and as accepted by the Court of Session in paragraphs [67]-[68] of the judgment) the detriment included losing control of their own development and having to deal with renewable energy apparatus on their land (and this notwithstanding any financial offers the appellants made in relation to section 50B schemes).

There is scope for an appeal of a Crofting Commission decision in the 1993 Act, and an appeal was duly made to the Scottish Land Court. (It was actually four appeals, but like the Scottish Land Court I will take them together for ease.) Notwithstanding the aforementioned protracted delay, the Scottish Land Court refused the appeal in July 2019.

The case came before Lord Carloway (the Lord President, the highest-ranking judge at the Court of Session) and Lords Brodie and Malcolm. Fortunately, the settlement of Carloway is on the west of Lewis, so there was no need for the Lord President to recuse himself from hearing the case for reasons of intra-island politics.

For anyone who I have lost with my o’erlang back story, the timeline of the dispute (including the approach and reasoning of the Crofting Commission and proceedings at the Scottish Land Court) is all set out adeptly in the “Background” of the Court of Session judgment (beginning at paragraph [8]).

Turning to the legal analysis of the judgment, by way of initial reassurance to non-legally qualified and indeed to legally qualified readers, there are some segments that everyone except a seasoned crofting lawyer will need to concentrate on to make sense of. This is not to criticise the decision: the court does its very best to explain things simply, despite the sections of the legislation appearing to follow some kind of hexadecimal numbering system.

The other thing that I found when I read the judgment for this first time – and admittedly I say this having been notified of the outcome prior to my reading the judgment – is it became quite clear quite quickly that this might not end well for the crofters. The direction of travel was somewhat apparent when two Scottish Deputy Ministers at important stages of the parliamentary progress of the relevant legislation, the Crofting Reform etc Act 2007, were quoted without controversy; saying (and I paraphrase) “section 50B will not allow crofters to build wind farms/physical developments on common grazings”. On reading further in the judgment, it then becomes apparent that the court did not think section 50B was ambiguous in any event (meaning there was no need to look to Ministerial statements as an aid to statutory interpretation), but it is quite a marker to throw down at paragraph [4] of a 74 paragraph judgment.

In terms of what the Court of Session had to consider, the first two questions were: (1) is the formal validity of an application for approval something that can be determined by reference to detriment to the owner; and (2) does such an application require to be determined in accordance with the provisions of section 58A? The discussion about these matters was taken together, beginning at paragraph [50]. There, the following is offered as a springboard for further analysis.

The subject matter of this appeal draws into sharp focus the rights of a landowner and those of the crofter in the use of a common grazing. The context, of what is ultimately a straightforward question of statutory interpretation, is to be found in the protections afforded to crofters in the Crofters Holdings (Scotland) Act 1886 and the gradual extension of crofters’ rights in the legislation which has followed.

Those protections and the gradual extensions are then duly analysed, and paragraphs [50]-[58] form an excellent primer to the evolution of crofting law. Towards the end of paragraph [58], it is noted:

The significance of the progress of the legislation in this area is that it continues to recognise the fundamental principle that the landowner remains the person who has title to the common grazing land, albeit subject to the crofters’ rights to graze.

The judgment then sets out the changes made in the 2007 legislation about schemes for development, counterpointing the section 19A scheme (allowing an owner to use it for purposes inconsistent with grazing, with a need for consent from the Land Court) with section 50B. This is noted about when consent can be granted (paragraph [59]):

That consent will depend (s 19A(2)) upon whether the development: is for a reasonable purpose; is not unfair; provides compensation to the crofters as if the land had been resumed; and benefits the community financially. The existence of a scheme of compensation, when the crofters’ rights are being interfered with, is significant when it comes to analysing the provisions which enable the crofters to propose their own alternative uses.

Regarding those alternative use provisions for crofters, it was stated that the terms of section 50B were “clear”. It was then acknowledged that subsection (2) paragraph (b) sets out the prerequisite that the use must not be such as would be detrimental the interests of the owner, and “if there is detriment to the landowner, the proposal cannot subsequently be approved for implementation, as it requires to be, by the respondents (s 50B(6)).”

An argument put forward for the appellants that it was for the relevant grazings committee to somehow decide in relation to the detriment point did not fly with the court, that being viewed as rendering a committee, or rather the crofters voting on a proposal, auctor in rem suam (“a judge in their own cause”) (paragraph [61]).

The judgment then considers whether there was nevertheless a need for the Crofting Commission to reach a decision in line with procedures set out in section 58A. To this, it is worth quoting from near the beginning of paragraph [62] until the beginning of paragraph [63].

[62]… It is important to note that section 58A(1) states that it is “subject to any express provision made by this Act in respect of any category of case”. Although that proviso may have been unnecessary, given the normal tenets of statutory interpretation, it makes it clear that the requirement for the respondents to take into account the listed factors is subject to any express provision relating to specific applications. Such a provision is contained in section 50B(2) which, as already noted in relation to the common grazings, requires that any proposed use should not be detrimental to the interests of the landowner. In that way, a lack of detriment is a prerequisite to approval. If the landowner demonstrates detriment, the proposal must fail, even if it is in the interests of the crofting community and the public at large and would contribute to sustainable development. In these circumstances, in the event of an objection based on detriment, the respondents are entitled to assess that matter before the application proceeds further. If Parliament had intended that all applications were to be dealt with by carrying out the balancing exercise, which is anticipated by the list of factors in section 58A(7), there would have been no need to introduce, in the same amending legislation, section 50B(2).

[63] Although there is no ambiguity in the legislation, had here been any doubt, the ministerial statements… make it clear that the absence of detriment to the landowner is a necessary condition for approval.

In a suitably belt and braces fashion, the relevant statements from Stage 2 and Stage 3 of the legislative process are then set out, before concluding (at the end of paragraph [64]) that, “Proceeding to consider the listed factors under section 58A(7), once a finding of detriment is made, could serve no useful purpose. It follows that the court agrees with the Land Court that the [Crofting Commission] did not err in any respect in the procedure which they adopted.

Those matters take up the lion’s share of the Court’s “Decision”, but there were some other points covered and I will detail these quickly. The Court addressed the question of whether a prospective commercial enterprise of the landowner is a relevant “interest” in terms of section 50B(2), but first noted the non-crofting law point that decisions relating to facts will not normally be interfered with by an appeal tribunal unless it can be demonstrated that there has been in a mistake in law rather than in an assessment of fact.

Here, I am going to quote an extract, not really for a legal point, but more for the barbed comment at the end that might serve as a judicial exhortation to get our energy infrastructure in order:

In the event of obtaining the relevant [planning] permission and [section 19A] consent, the interested parties would have the ability to construct a wind farm which they might anticipate would generate significant electricity and, in all probability, a substantial profit, at least if the inter-connector is ever built across the Minch.

Inter-connector scarcity aside, this enterprise was an interest, and the appeal court did not interfere with this matter. Next, as to whether the Crofting Commission was entitled to find a detriment, again this was something that the appeal court did not interfere with, noting “it would only be on the basis that there was no material upon which that finding could have been made that the court could intervene.

Lastly was a point about section 58A, relating to the decision-making process of the Commission. This would normally only allow 28 days for an objection to be made by the owner after public notification of an application to the Commission, but as noted above in terms of subsection (5A) “the Commission may accept an objection submitted after the end of the 28-day period if they consider there is a good reason why the objection is late.

This bit of the judgment is perhaps not as clear as it might have been, but it is fair to say that the time-period for the Stornoway Trust to whinge on a clear statutory basis had sailed past. (There is some discussion in the case about the fact the objections were out of time notwithstanding the Crofting Commission’s lack of communication with the land owner.) Nevertheless, the objections were accepted. Earlier in proceedings, the Scottish Land Court did take a swipe at the circumstances that had developed, but it did not see fit to interfere to the extent of not allowing the acceptance of the objections. Neither did the Court of Session, as (similarly to the other issues just mentioned) the acceptance of circumstances as good reasons was treated as something that is not normally for an appeal court, unless there was (with reference to the case of Wordie Property Co v Secretary of State for Scotland 1984 SLT 345) a material error of law, a situation where irrelevant considerations were taken into account or relevant and material considerations were excluded, no proper basis in fact to support the decision, or the decision was so unreasonable that it should never have been reached. At paragraph [71], it was noted that grounds advanced by the appellants “fall far short of meeting this test”. There is perhaps some discussion to be had about the status of the late objection, but for present purposes I will leave it at that.

Postscript

With that final throw of the dice failing, so too did the appeal. The parameters of section 50B are now a little clearer, at least at the upper end in terms of what cannot be achieved with it. For the “Gang of Four”, as described in Annabel Pinker’s post, it is now for them to look to the section 19A process to find some way of engaging with that, or find a way of progressing things that does not involved section 50B. A crofting community buyout is theoretically possible, but (for reasons set out in my earlier post) seems unlikely.

Normally at this stage in a case comment I would offer commentary of some sort. The Court of Session has stolen my thunder somewhat and offered a postscript of its own, at paragraph [73] I will take the liberty of copying it in full here.

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 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 legislative development would require section 50B(2)(b) to be repealed. Since the landowners’ property rights would almost inevitably be interfered with by the superimposition of an alternative development, the need, in terms of Article 1 Protocol 1 to the European Convention (the right to peaceful enjoyment of possessions), for the incorporation in any amending legislation of a scheme for compensating the landowner for any loss would become apparent.

In terms of reaction to the decision, even though the judgment went against them that postscript has been endorsed by representatives of the four crofting townships.

The overall judgment has, unsurprisingly, been welcomed by the Stornoway Trust.

Now I will offer more of my own conclusion. Back in that earlier post, I stated:

There are some big questions here and in turn they raise some fascinating questions about who the community actually is: local crofters acting through a common grazings committee; crofters and non-crofters in a township; or the community landowner which owns the land where these and a number of other townships are positioned.

That observation stands. There are also wider interests for those who do not live in Lewis, and I do not just mean someone like me who likes to visit Stornoway and Point for family or sentimental reasons. Wider society needs to address challenges relating to energy, and plonking wind turbines on four common grazings when it seems apparent the people living near there might like things to be done a little differently ought to make people who do not live there but could benefit from the energy produced think carefully. That is a bigger question of energy politics and production though.

Next, a property law point. Article 1 of the First Protocol to the European Convention on Human Rights is mentioned in the judgment. It is surely correct that it was. Purely in human rights law terms, it would have been quite an imposition on the land owner if section 50B allowed it to be usurped without clear compensation, even if in this instance compensation was being offered. The Court of Session was obviously aware of this, in terms of its comparisons of section 50B with: a) section 19A; and b) the crofting community right to buy in the Land Reform (Scotland) Act 2003. It would have been difficult for the court to interpret section 50B in a way that left the land owner’s peaceful enjoyment of a possession – subject to crofting law as it is – so ousted.

Finally, a practical point. The closing stages of this dispute had to be navigated during the new normal of Covid-19. This meant elements of the proceedings were undertaken remotely. For my part, I was actually invited to attend a remote hearing and unfortunately I missed it, owing to another online (teaching) commitment, but it was nice to have the prospect of attending without the need to make a trip to Parliament House. The judgment itself is well put together, so props to all involved with it. There are a couple of tiny issues though: the Commission is called “THE CROFING COMMISSION” (missing a T) in the heading, and in paragraph [66] the respondents’ real and substantial commercial development in prospect is mentioned when presumably the Court meant the interested parties (these being the Crofting Commission and the Stornoway Trust respectively). I almost feel bad for mentioning those infelicities as something of a conclusion. Like I say, everyone involved in the litigation did well to get it to a conclusion. Now we wait for the section 19A owner scheme for development to trundle on. There may even be further litigation. If so, that is for another day, and maybe for another blog post.

Thanks to those who had a look over this blog post for me, who I won’t name to protect the innocent. Feel free to comment below if you want to identify yourself or add to my analysis in public. Any errors are mine, and I’m conscious that disclaimer follows a haughty highlighting of some minor errors, so no doubt I’ve set myself up deliciously for a fall.

Point

On Point: A photo taken from between Swordale and Aignish, which I snapped on a walk in 2019.

 

About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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