Winds of change? Crofting, community and renewable energy development in the Hebrides

Crofting is a quirky type of landholding that exists in the Highlands and Islands of Scotland. Born out of 19th century land politics and indeed land agitation, the crofting system is now regulated by statute, namely the Crofters (Scotland) Act 1993 and some later amending legislation. The system is regulated and promoted by the Crofting Commission and, if necessary, a specialist dispute resolution forum called the Scottish Land Court can play a role to settle any arguments.

In general terms, crofting law gives each crofter the right to an individual croft holding and also a shared right to use the common grazings for the relevant crofting township relating to that croft. Traditionally, the right to the croft was an incredibly heavily regulated form of lease. Two striking aspects of this landlord and tenant relationship were that: 1) a landlord would normally find it difficult to recover “vacant possession” of a croft from a tenant; and 2) if for whatever reason a croft became vacant (i.e. there was no tenant), it remained subject to crofting regulation and could not automatically be turned over by the landowner to non-crofting use.

In 1976, a change was brought in to allow individual crofters to buyout their landlord, this being the so-called “individual right to buy”. This option is still available to crofters and there are only narrow grounds for objection to the sale that can deployed by the landowner. This reform means there is now a class of “owner-occupier crofters” alongside the more traditional crofting tenants. Whilst such owner-occupiers do, of course, own the land, they too are subject to certain rules and duties that reflect the land’s crofting status, so they do not have a free hand in terms of what to do with their land either.

Another key change came in 2003, when Part 3 of the Land Reform (Scotland) Act 2003 gave crofters the right to associate together with other crofters and non-crofting members of the local community to acquire certain land and, in a roundabout way, become their own landlord. The crofting community is embodied in a legal entity – normally a company limited by guarantee – which then owns the crofts, common grazings and any additional local land that was included in the sale. Assuming that all the requirements of the legislation are complied with by the community, such as the acquisition being in the “public interest” and geared towards local “sustainable development” and also taking place with the local inhabitants’ approval, there is little a landowner can do to resist a sale in these circumstances, although it should be noted the landowner will receive either an externally valued or agreed price for the land that is forcibly transferred.

This blog post is not really about any of that. As such, you may – legitimately – be wondering why I set all of that out. My reasoning for doing so is it is necessary to have a handle on how crofting works and knowledge of some of the topical issues in crofting law (and there are many: see, for example, this blog post from a recent crofting law group conference) to then be able to get a handle on an issue that is being played out in the Isle of Lewis, on land owned by the Stornoway Trust. Incidentally, the Stornoway Trust is a community landowner, albeit it was established before legislation that facilitated community ownership was passed. It was set up in the 1920s when the outgoing owner of Lewis – Lord Leverhulme – offered the island to its inhabitants. The town of Stornoway and some nearby areas (such as Point and North Lochs) agreed to this and a legal body which is accountable to the local community was established to own and manage approximately 70,000 acres of land. That fact, and the legislative scheme for crofting community acquisitions and crofting law as a whole, will be returned to below, after a brief explanation of the issue that is causing controversy.

How to develop croft land for non-crofting purposes – option 1 – a landowner scheme

The controversy – if that is the correct word – is a proposed renewable energy scheme involving on-shore wind turbines. It has received coverage in The Guardian and on Channel 4 News.

This would not be the first on-shore wind scheme in Lewis, but it would be at a scale that is noteworthy. It has also become intertwined with the development of an interconnector to allow more electricity to travel from the Western Isles to the Scottish mainland than is currently possible. Such a connection is crucial for any large future energy scheme, whether it be this one or another one. The proposed scheme has the backing of the local council, Comhairle nan Eilean Sìar, a developer (described by The Guardian as “energy giants EDF and Wood Group”, using a special purpose vehicle called Stornoway Wind Farm Limited or Lewis Wind Power) and the landowner (the Stornoway Trust).

Away from all the energy practicalities and indeed energy regulation implications of the scheme, before any development can happen on the ground the landowner needs to comply with crofting legislation. The way for a landowner to do this is to make use of section 19A of the Crofters (Scotland) Act 1993 (the “1993 Act”), which is about “Schemes for development” on croft land and common grazings. Such schemes are not of the sort that would normally take place there, and as such special consent is needed.

Section 19A was introduced in 2007 and (true to crofting law being inaccessible to many) it is not currently available in the version of the 1993 Act that is on the legislation.gov.uk website. You can however find it via section 30 of the later legislation that introduced it, the Crofting Reform etc. Act 2007, which is available here.

This allows for an application to the Scottish Land Court for consent to a development, where that development is set out in a plan submitted to the Land Court. The development will only be consented to if a number of conditions are met, including that (1) the development is for a “reasonable purpose”, (2) carrying it out would not be “unfair”, (3) that there is fair recompense to each member of the crofting community in the area affected by the development for the effects of the development, and (4) the Land Court being satisfied that the community would be likely to benefit financially AND “such benefit would be at least commensurate with any financial benefit which the members of that community might obtain on the development proceeding other than by virtue of this section”.

The landowner (or at least its nominee, the developer) has made use of section 19A in this instance. The scheme for development can be found here. In fact, there has been Scottish Land Court litigation about this scheme already. I will come back to that, because here is where it gets interesting.

Without going into any financials or the like, some members of the crofting community are either not happy with the deal they are getting or not happy with the scheme in principle. There have been objections. (That Stornoway Gazette report incorrectly refers to section 19; it is section 19A.) The Scottish Land Court identifies there were 231 objections after an advert ran in the Stornoway Gazette over a two-week period. As to whose objections are relevant here, a Scottish Land Court case has clarified it is objections from those who are actually involved with crofting, and that involvement can be something other than a share in the affected croft land or common grazings. More general objections about the public interest as a whole are, however, catered for by the planning process.

Sticking with who can validly object, a more recent decision – so recent it is not yet on the Scottish Land Court website – relates directly to the objections raised in relation to this section 19A scheme. In this provisional judgment (see below), the Scottish Land Court has ruled that only the technical occupiers of a croft can object (so a tenant, an owner-occupier or a valid subtenant) or shareholders in a common grazings are in a position to show this interest, which rules out objections from the likes of spouses, other family members or indeed lodgers associated with a crofter. This decision also has the effect of excluding grazings clerks where they do not fall into such a recognised category. The provisional nature of this judgment relates to the court giving time for several individuals to clarify if they do fall within a recognised category. The judgment will remain provisional until 1 June 2018, at which point it will be finalised. As things stand, the net effect of all of this will be to whittle down the number of objectors by roughly a hundred.

That is enough about the section 19A scheme for development for the moment. What is now worth considering is that some crofters also have – they think – a valid comparator as to why they could get a better deal or produce a preferable scheme than the one offered under section 19A, namely an existing crofting community-led scheme for three turbines developed by Point and Sandwick Trust at Beinn Ghrideag. This has led a number of townships to do something beyond objecting but also consider using crofting legislation to try to go their own way. This they can do by virtue of section 50B of the 1993 Act.

How to develop croft land for non-crofting purposes – option 2 – a grazings committee scheme

Section 50B also does not appear in the version of the 1993 Act that is available on the legislation.gov.uk website, which goes straight from section 50 to section 51. Incidentally, section 50 is a useful entry point to this discussion, as it is something of a precursor to section 50B. It allows common grazings to be used for forestry, meaning there is a precedent for common grazings being used for something other than communal grazing. By way of background, “common grazings” are explained in the Crofting Commission’s FAQs as an area of rough grazing land shared by a number of crofters or other occupiers. Traditionally, this would have been used for the grazing of livestock, and perhaps also for purposes like gathering materials for thatch. Over the years this has become a bit more flexible, with section 50 allowing for forestry.

Section 50B does something similar, allowing a grazings committee (the representative entity that administers a common grazings) to diversify into a scheme beyond forestry. You can find section 50B online via section 26 of the Crofting Reform etc. Act 2007, which is available here, but care must be exercised when looking at this section. Section 50B was later amended, to lop off everything that followed after subsection (6), and there was another slight amendment relating to the form of application that a grazings committee has to submit. This was as a result of the new section 58A (introduced by the Crofting Reform (Scotland) Act 2010), which now sets out how any applications to the Crofting Commission are to be made and what the Commission must do when an application is received. For ease of reference, section 50B as it stands is extracted below at the end of this blog post.

As I understand it, there are three grazings committees in the area owned by the Stornoway Trust who have made an application to the Crofting Commission about a use other than grazings or woodlands, and there is one grazings committee that could be poised to do so and is accordingly watching matters closely. (The Scottish Land Court decision mentioned above refers to the fact four grazings committees, namely (a) Aignish, (b) Melbost & Branahuie, (c) Sandwick North Street and (d) Sandwick & Sandwick East Street, have applied, but I understand Aignish has not done so yet.) The three committees that did make an application did so in late 2016 and early 2017. For such an application to be made, the owner must have been given a chance to comment on the plan, and the proposed use must not be detrimental to other parts of the common grazings or the interests of the owner.

Needless to say, the use in question for each of the three applications relates to a wind farm development. Commenting from the east coast of the Scottish mainland I am conscious I might not have a full handle on all these potential schemes for the east coast of Lewis, but I understand each section 50B application largely tracks the relevant element of the larger section 19A development scheme, by allowing for a similar number of turbines in the each of the respective common grazings.

A debate could be had about whether such schemes would be detrimental to the interests of the owner, which I will skim over. Instead of analysing that, I will note one point that has not been closely analysed in the coverage to date of this matter, namely the role of the Crofting Commission. I will then further consider the community dynamics that are at play here.

The Crofting Commission and Section 50B

In terms of what the Crofting Commission needs to do when any section 50B application is received, can it do what it likes? Not quite. Section 58A sets out steps that must be taken, some of which involve a timeline. And where a duty is conferred on someone, in administrative law terms you cannot simply not act. That is not to say the Commission is automatically wrong to wait and see what happens with any section 19A application by the landowner, but in theory that application stands alone and – as noted in the Scottish Land Court decision – there is no order of precedence amongst these two sections [paragraph 11]. There might, in some circumstances, be a time when it would be appropriate to consider a judicial review action on the basis of a lack of a decision – that is to say, a court action scrutinising the actions of someone who has delegated authority. That might – and again I stress the word “might” – come into play if the Crofting Commission were to continue not making a decision. Then again, any decision maker is wise to ensure it has as much information as possible before making a decision and it might equally be the case that some of the time taken between the applications originally going in and any decision being made relate to the receipt of information that is relevant to each section 50B decision.

Whilst the exact meaning of section 50B might be up for debate, one thing that is certain is that it is not a dead letter. In statutory interpretation terms, parliament does not enact a law for no reason. At some point matters will come to a head. Relatedly, they almost came to a head in some Scottish Land Court litigation that I referred to above. There, the Court declined to sist (stay, or pause) the section 19A application until such time as a section 50B determination was made, therefore allowing the landlord’s scheme to continue. And that is where matters sit at the moment.

Which community?

One further point that has not been regularly made follows. In some quarters this whole story has been explained as a story of communities v landlord. That makes for good reading, no doubt. But it has to be recalled that the landlord here is another manifestation of the community, and the Stornoway Trust is accountable to its residents and has elections for its office bearers.

Naturally, there may be arguments about whether this higher level of the community is getting everything right. That applies in general – such is the nature of community land ownership – but it has been brought into focus in this particular instance where the Stornoway Trust has yoked itself to the plan of the developer. (Considerations around the interconnector and the viability of any development may have fed into that approach.) What also has to be recalled is one reason the community has been steered towards section 50B rather than pursuing a crofting community buyout is because that buyout route – despite being possible in terms of Scottish land reform legislation – is not exactly viable or attractive for them.

It will be recalled that Part 3 of the Land Reform (Scotland) Act 2003 confers the crofting community right to buy, and in other situations like this (where a crofting community is not happy with a landlord’s schemes) the community has an out-ball. (Pairc, anyone?) Sure, it could be an expensive option, but an option nevertheless. In this situation in Lewis though, would any sub-community within the Stornoway Trust land area have an easy time in showing that its acquisition of common grazings from an actual, established community landowner would be in the public interest and compatible with sustainable development, those being two tests that apply when there is a transfer under the land reform legislation? And would they be able to win a local ballot, which would be a ballot that would include non-crofting members of the relevant township? (That ballot process would contrast with the section 50B approval process, which involves crofters only, i.e. there is a slightly different franchise. That being said, I understand some of the townships with a common grazings committee that have utilised section 50B are predominantly formed of crofting households, and that there was wide support amongst those crofters to a section 50B application, so the effect of this subtle difference in franchise should not be overstated.)

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. For clarity, the reason I am not asking the existing landowner to address big questions about the likes of sustainable development and local approval of the scheme that the existing community landowner favours is not because I am giving it an easy ride, it is the purely legal reason that such questions would be specifically faced by any crofting community seeking a buyout under the 2003 Act. It will also be recalled that the scheme favoured by the landowner is subject to planning law checks and balances and there are energy considerations as well.

As regards the section 50B applications, should they be viewed as purely strategic because a crofting community buyout would involve different obstacles? That might be unfair. I understand many crofters in the Stornoway Trust area strongly advocate community ownership and as such would not wish to completely upset the applecart with a community v community buyout. And in a way, a push towards section 50B might be more about rearranging the applecart, by finding another way to hold a landowner to account. Incidentally, another means of involving communities in important decisions about land is now provided for in land reform legislation, by dint of the community engagement provisions in Part 4 of the Land Reform (Scotland) Act 2016. Whether or not the new guidance would have made any difference in this situation had it been in place at an earlier stage is difficult to say, but it might have a role in ensuring communities understand and are on board with any schemes in the future.

Conclusion?

So what happens next in Lewis? Good question. The section 19A process rumbles on, and (as noted throughout) there are issues completely separate to crofting law to consider as this project moves forward. The section 50B processes also move along, and I think it is fair to say there are some issues with the mutual compatibility of those applications and the wider section 19A scheme. Maybe a compromise could emerge, but (outside looking in) there seems a degree of entrenchment. Assuming no compromise, both sections are subject to controls to ensure anyone applying will not have a clear run. No doubt there will be plenty to keep lawyers busy. It is not for me to comment on what should happen next, but I will be watching with interest.

One final point falls to be made, about community approval. Many modern schemes that are designed to cater for matters like climate change can have a big impact on local people. Getting communities onside is accordingly crucial. This is something that was discussed at an event with two of my University of Aberdeen colleagues, Dr Tavis Potts and Dr Daria Shapovalova, at the May Festival; Tavis has been doing some work around people’s perception of climate change and is engaged in some ongoing work to do with the offshore wind development that is visible off the coast of Balmedie, just north of Aberdeen. What is being played out on Lewis might be seen as a rather convoluted way of stress-testing community approval. Hopefully this post has served to explain some of the issues involved, and (perhaps optimistically) I hope the crofting system and the community dynamics at play can ultimately lead to a renewable energy scheme that is suitable for the locale and for the people that will be living near any turbines, but also for the landowner, the developer and indeed the wider community of Scotland.

Section 50B of the 1993 Act

(1) A crofter who holds a right in a common grazing may propose to the grazings committee… that a part of the common grazing be used other than for—

(a) grazings or a purpose mentioned in section 52(9) of this Act; or

(b) woodlands.

(2) The use proposed must not be such as would be detrimental to—

(a) the use being made, as at the time of application, of the other parts of the common grazing; or

(b) the interests of the owner.

(3) On receipt of a proposal made under subsection (1) above the grazings committee… shall, for the purpose of there being a discussion and vote on the proposal, summon a meeting of the crofters who share in the common grazing.

(4) Regulations… shall, in relation to any meeting so summoned, provide that—

(a) the time, place and purpose of the meeting (including the proposal in question) should be—

(i) set out in a notice sent by registered post to each of those crofters and to the owner; and

(ii) intimated by public notification,

at least 28 days before the meeting; and

(b) the grazings committee… shall, in sending such notice to the owner—

(i) invite him to give his views as to the proposal; and

(ii) afford him the opportunity to discuss it, at such reasonable time before the meeting as is convenient to him, with a member of the committee…;

(c) at the meeting any views so given (or disclosed in discussion) shall be made known to the crofters attending;

(d) subject to subsection (5) below, the vote on the proposal shall be by simple majority of the votes cast by the crofters attending (a crofter being entitled to a single vote for each share in the common grazing which he holds);

(e) the result of the vote shall be declared at the meeting; and

(f) the owner shall be advised by the grazings committee…, by written notice given within two weeks after the meeting takes place, of its outcome (that is to say, of whether the proposal has been accepted or rejected, of the number of crofters present, of the numbers of votes, including votes by proxy or by post, respectively for and against and of the number of crofters attending but abstaining) and, if the vote is in favour of the proposal, of what subsection (6) of this section requires to be done.

(5) A crofter who is unable to attend the meeting so summoned but who has notified the grazings committee… of that circumstance may vote by proxy or by post (provided that any vote posted shall be valid only if received by the committee before the meeting).

(6) If the vote is in favour of the proposal the committee… shall apply to the Commission seeking their approval for its implementation.