THE COURT

(I F Maclean, Deputy Chairman; J Smith)

COIGACH WIND POWER LIMITED v ACHILTIBUIE COMMON GRAZINGS SHAREHOLDERS & OTHERS

(Application RN SLC/109/15 – Order of 17 June 2016)

CROFTING – COMMON GRAZING – APPLICATION FOR CONSENT TO SCHEME FOR DEVELOPMENT – INTEREST TO SUBMIT WRITTEN OBJECTIONS TO AND BE HEARD AS RESPECTS APPLICATION – WHETHER DEVELOPMENT FOR REASONABLE PURPOSE – WHETHER TO CARRY OUT DEVELOPMENT WOULD BE UNFAIR – EFFECTS OF DEVELOPMENT -- WHETHER SCHEME PROVIDES FOR THERE TO BE FAIR RECOMPENSE FOR EFFECTS OF DEVELOPMENT – WHETHER CROFTING COMMUNITY IN AREA AFFECTED BY DEVELOPMENT WOULD BE LIKELY TO BENEFIT FINANCIALLY WERE DEVELOPMENT TO BE CARRIED OUT – APPROACH TO EXPENSES IN APPLICATIONS FOR CONSENT TO SCHEMES FOR DEVELOPMENT – SECTION 19A CROFTERS (SCOTLAND) ACT 1993

An applicant, the wholly owned subsidiary of a community development company, with consent of the landowner, applied to the Court for consent to part of a common grazing being developed in accordance with a scheme. The scheme appended to the application was for the installation of a single wind turbine which would generate electricity for sale to the National Grid, thereby creating an income stream which the community development company could expend for the benefit of the local community. After public notification of the application, the Court received a number of written objections as respects the application. The objectors included persons who were shareholders in the common grazing, but they withdrew their objections in advance of the hearing upon being advised by the applicant’s solicitors that if successful, the applicant would seek to claim all expenses incurred in the court process from the objectors. The applicant also challenged the interest of the remaining objectors to submit written objections to and be heard as respects the application, which led to the withdrawal of more of the objections, so that by the date of the hearing, only one objector remained. The remaining objector did not have rights in or over the common grazing upon which the development was to take place, but claimed to be a “member of the crofting community in the area affected by the development” as that expression was used in sections 19A(2)(c) of, and as such qualified as an “interested party” for the purposes of section 19A(7)(b) of, the 1993 Act.

HELD, on the PRELIMINARY ISSUE of interest to object:

(1) that section 19A of the 1993 Act was concerned with the protection of crofting interests, and not with the wider public interest, of which account is taken in the planning process, so that persons who were not themselves members of the crofting community could not be an “interested party” for the purposes of section 19 A (7)(b) of the 1993 Act;

(2) that in the circumstances of the present application, the Court would not have been entitled to hold, without inquiry into the facts, that the remaining objector was not a “member of the crofting community in the area affected by the development”, and as such, an “interested party”, entitled to submit written objections to and be heard as respects the application; but that,

on the MERITS:

(3) in the absence of evidence of what the effects of the development upon the remaining objector would be, the remaining objector had failed to make out any of the grounds of objection mentioned in section 19A(8) of the 1993 Act, and

(4) the Court was satisfied, on evidence, that (a) the development was for a reasonable purpose, (b) to carry it out would not be unfair, (c) the scheme provided for there to be fair recompense to each member of the crofting community in the area affected by the development for the effects of the development, and (d) were the development carried out, that community would be likely to benefit financially, and that 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 section 19 A, and so gave its consent to the development under section 19 A (1)(a) of the 1993 Act;

OBSERVED that it had not been appropriate for the applicant’s solicitors, in writing to the objectors seeking to persuade them to withdraw their objections, to invoke the rule in ordinary litigation that expenses generally will follow success. Section 19A of the 1993 Act was enacted to provide a means alternative to resumption by which croft land or common grazing could be made available for development, and the Land Court’s long established practice in resumption applications is that the landlord will bear the expenses even where successful. The Scottish Parliament, in enacting section 19A of the 1993 Act, may be taken to be aware of the Court’s normal rule on expenses in resumption applications, and had it intended the Court to adopt a different approach to expenses in applications for consent under section 19A of the 1993 Act, it could and would have so provided, as by inserting into section 19A of the 1993 Act a provision enjoining it, in making an order as to expenses, to have regard, in particular, to the extent to which the application, or any objection to it, was successful.

The Note appended to the Court’s order is as follows:

[1] In this Application by Coigach Wind Power Limited (“CWP”) under section 19A of the Crofting (Scotland) Act 1993 (“the 1993 Act”) for consent to a scheme for the development of the Achiltibuie Common Grazings (“the Application”), the Court sat to hear evidence and submissions in the clubhouse of Ullapool Golf Club on 10 and 11 May 2016. At the hearing, CWP was represented by Sir Crispin Agnew of Lochnaw Bt., QC, instructed by Harper MacLeod LLP, Solicitors, Inverness, who led evidence from Stephen Husband and Ms Alison Hitchings, two of the Directors of CWP, Fraser MacKenzie, a holiday home owner in the locality with professional experience in renewable energy projects who has been advising CWP in connection with the project, Mrs Julia Campbell, a part-time paid employee of CWP’s parent company, Coigach Community Development Company (“CCDC”) and Hamish Sinclair, a local crofter and shareholder in the Achiltibuie Common Grazings. The Court, after ordering public advertisement of the making of the Application, received eight written objections thereto, representing seven separate interests, but by the date of the hearing, all but two of those objections had been withdrawn, in circumstances to which further reference will be made in the paragraphs which follow hereon. Of the two objectors who did not formally withdraw their objections, one, Ms Hampton, a non-crofter who owns a property at Badenscallie, did not attend the hearing, but the other, Mr Reiner Luykens, after some equivocation, opted to participate, representing both himself and his wife Mrs Sheileagh Luykens, and he took the opportunity both to question CWP’s witnesses and to make submissions on the evidence and on the preliminary issue of interest to object in terms of section 19A, to which we shall also be reverting later in this Note. At the conclusion of the evidence and submissions, the Court adjourned to travel to Coigach where we inspected the site of the proposed Coigach Community Wind Turbine, the development for which the consent of the Court is sought.

The legislation

[2] Section 19A of the 1993 Act provides:

“(1) The landlord (or owner), or any person acting with the consent of the landlord (or owner) —

(a) may by application to the Land Court seek its consent to —

(i) croft land or common grazing; or

(ii) land near to croft land or common grazing if rights and liabilities in relation to the croft land or common grazing would be affected,

being developed in accordance with a scheme appended to the application; or

(b) may intimate to that Court that every person who has rights in or over croft land or a common grazing consents to its being developed in accordance with a scheme appended to the intimation,

and the applicant shall send a copy of the application or as the case may be of the intimation (and, in either case, of the appended scheme) to the Commission.

(2) Consent under paragraph (a) of subsection (1) above is not to be given unless the Court is satisfied —

(a) that the development is for a reasonable purpose;

(b) that to carry it out would not be unfair;

(c) that the scheme provides for there to be fair recompense to each member of the crofting community in the area affected by the development for the effects of the development (including, in relation to the croft land of each such member, recompense at least equivalent to the recompense which the member might be expected to have obtained had that croft land been resumed); and

(d) that, were the development carried out —

(i) that community would be likely to benefit financially; and

(ii) 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.

(3) For the purposes of subsection (2) above —

(a) the definition of "reasonable purpose" in subsection (3) of section 20 of this Act applies as it does for the purposes of subsection (1) of that section;

(b) it is unfair to carry out a development only where to do so would have significant adverse consequences for one or more of the members of the crofting community in the area affected by the development and either those consequences would be disproportionately greater than the adverse consequences for the other members of that community or there would be no adverse consequences for those other members;

(c) whether recompense is fair is to be determined having regard both to the value of the development and to its effect on the member in question; and

(d) an effect for which there is to be fair recompense may be an effect of any kind whatsoever (and in particular need not be an effect on a croft qua croft).

(4) An application under paragraph (a) of subsection (1) above or intimation under paragraph (b) of that subsection shall —

(a) be made in such form; and

(b) be accompanied by such fee,

as the Court shall specify; and the Court may make different provision for different categories of case.

(5) Provision made under subsection (4)(a) above shall include provision as to the form and content of the appended scheme.

(6) A person making an application under paragraph (a) of subsection (1) above or giving intimation under paragraph (b) of that subsection shall forthwith give public notification of the application or intimation.

(7) Within 28 days after the public notification is given (including the day on which given) —

(a) the Commission; or

(b) any other interested party,

may submit to the Court written objections, on one or more of the grounds mentioned in subsection (8) below, as respects the application or intimation; and the Court shall hear the objectors (if any) before determining whether to give consent under this section or as the case may be before determining whether to proceed under subsection (10) below as respects the intimation.

(8) The grounds are —

(a) that the development is not for a reasonable purpose (the definition of "reasonable purpose" in subsection (3) of section 20 of this Act applying for the purposes of this paragraph as it applies for the purposes of subsection (1) of that section);

(b) that to carry out the development would be unfair to the crofting community;

(c) in the case of a submission under paragraph (a) of subsection (7) above, that the scheme does not provide for there to be fair recompense to each member of the crofting community;

(d) in the case of a submission under paragraph (b) of subsection (7) above —

(i) that to carry out the development would be unfair to the objector;

(ii) that the scheme does not provide for there to be fair recompense to the objector;

(e) that, were the development to be carried out, the crofting community would be unlikely to benefit financially;

(f) that, were the development to be carried out, any financial benefit to the crofting community would not be as mentioned in sub-paragraph (ii) of subsection (2)(d) above.

(9) The Court shall, whether or not there is a hearing under subsection (7) above, give reasons for any such determination.

(10) On —

(a) giving consent under this section; or

(b) determining to proceed under this subsection as respects an intimation,

the Court shall advise the Commission that it has done so and provide them with a copy of the scheme in accordance with which the development is to take place; and the Commission shall enter that copy in the Register of Crofts.

(11) When so entered the scheme shall, insofar as its terms so provide, be binding on —

(a) the landlord (or owner);

(b) any member of the crofting community in the area affected by the development;

(c) any person who, though not described in paragraph (b) above, is —

(i) a tenant of a croft; or

(ii) a holder of grazing rights,

in that area; and

(d) the successors to the persons mentioned in paragraphs (a) to (c) above.”

The development for which the consent of the Court is sought

[3] CWP, incorporated in Scotland with registered number SC413306 and having a registered office at Coigach Community Hall, Achiltibuie, Ullapool, Ross-shire, is a wholly owned subsidiary of CCDC, a company limited by guarantee incorporated in Scotland with registered number SC374107 and having a registered office also at Coigach Community Hall. According to Article 4 of its Articles of Association, CCDC was formed:

“to benefit the community of Coigach as defined by the postcode units IV26 2YT, IV26 2YR, IV26 2YJ, IV26 2YN, IV26 2YS, IV26 2YL, IV26 2YP, IV26 2YG, IV26 2YB, IV26 2YF, IV26 2YH, IV26 2YW (“the Community”), with the Purposes listed in the sub-clauses hereto (“the Purposes”), to be exercised following the principles of sustainable development (where sustainable development means development which meets the needs of the present without compromising the ability of future generations to meet their own needs), namely:

4.1 To manage community land and associated assets for the benefit of the Community and the public in general.

4.2 To provide, or assist in providing, recreational facilities, and/or organising recreational activities, which will be available to members of the Community and public at large with the object of improving the conditions of life of the Community.

4.3 To advance community development, including urban or rural regeneration within the Community.

4.4 To advance the education of the Community about its environment, culture, heritage and/or history.

4.5 To advance environmental protection or improvement including preservation, sustainable development and conservation of the natural environment, the maintenance, improvement or provision of environmental amenities for the Community and/or the preservation of buildings or sites of architectural, historic or other importance to the Community.”

Article 6 of the Articles of Association provides for the general structure of CCDC, comprising Ordinary Members, Associate Members and Junior Members; and Directors. Article 8 provides that Membership of the Company is open to Ordinary Members, being those individuals aged 18 or over who (a) are ordinarily resident in the Community; and (b) are entitled to vote at a local government election in a polling district that includes the Community or part of it; and (c) who support the Purposes.

[4] CWP was incorporated on 16 December 2011 as a vehicle through which CCDC might, without risk to itself in the event of the project’s failure, pursue the development of a single wind turbine, to be situated on land forming part of the 5,300 hectare Achiltibuie Common Grazings in the ownership of the Scottish Wildlife Trust lying just to the North of the Achvraie Water Treatment Works, with the object of generating funds, through the sale of electricity to the National Grid, that might be utilised for the benefit of the community of Coigach. Planning Permission for the erection of one 900 kW wind turbine on 55 m tower, height to tip 77 m, blade diameter 44 m and control buildings was granted by the Planning Authority, The Highland Council, subject to sundry conditions, on 24 February 2014 under Ref.: 13/02582/FU. CWP subsequently discovered that a 900 kW turbine would require to be connected to the main transmission network at Achiltibuie, entailing the installation of 6 km of overhead power lines within what is a designated (Assynt-Coigach) National Scenic Area (“NSA”), but that a smaller 500 kW turbine, on a 50 m tower with 48 m rotor diameter giving a maximum tip height of 74 m, could be connected to the grid without the necessity of any overhead power lines and, costing less to connect and attracting a higher level of payment in relative terms, would generate comparable financial returns for CWP. It is this smaller turbine which, we are told, CWP now proposes to erect. The development would remove from grazing only the actual footprint of the turbine and its foundations and an adjacent area of hard standing, to be created for the crane which will lift the turbine into place, and the solum of a new access road to the base of the turbine, branching off from the existing private road which leads up into the common grazings and is maintained by Scottish Water for the purposes of the Achvraie Water Treatment Works, but there would be a 19.6 hectare “wind protection zone” around the turbine within which no other development or planting by the crofters would be possible. The boundary of the wind protection zone would not be demarcated by any physical feature on the ground, and livestock would continue to be able to graze within that area up to the base of the turbine. There was no evidence before the Court that the grazings shareholders have, or had, in train any plans for development or planting within that area which the imposition of the wind protection zone would frustrate. A borrow pit would be excavated just off the private road lower down the hill to provide spoil for the construction works, but the proposal is that the land utilised for the borrow pit would be reinstated after its purpose was served.

[5] Mr Husband spoke convincingly to the particular suitability of the chosen site (a number of other potential sites had been considered) for the erection of a wind turbine. The ground upon which the turbine would stand was hard, rather than deep peat, and the site was exposed to all of the prevailing winds and close to a suitable grid connection at Pole 67, located just behind the Achvraie Water Treatment Works, to which an underground cable could be run from the turbine. The results of the preliminary wind resource assessments had been promising, and on the basis of the feasibility studies, CWP’s projection is that the turbine will generate a likely total net income of some £2 million over its 20 years lifespan, so that after making its loan repayments, CWP would have some £80,000-£100,000 to make over to CCDC annually for spending on community projects. Mr Husband attached significance to the fact that the turbine would be close to the built environment of the community it would serve. He freely acknowledged that solitary turbines situated apparently miles from anywhere could look odd, but here, he contended, the turbine would become part of the infrastructure of the local community. It was explained to us that CWP has obtained from Scottish & Southern Energy PLC a grid connection date of March 2017, which is also when its guaranteed feed-in-tariff pre-accreditation expires. We were told that if the turbine is not connected to the National Grid and generating electricity by that date, the benefit of that pre-accreditation will be lost and the project would not be financially viable at the prevailing, significantly reduced, feed-in-tariff rates.

[6] On the first day of the hearing, Mr Husband told us that the finance for the development was not yet in place; that CWP was in talks with a number of lenders, one of which was very keen, but that, if all else failed, there was the Scottish Government sponsored (through the Scottish Investment Bank) Renewable Energy Investment Fund (“REIF”) scheme to fall back on, although its terms were not the best available in the market, and the Directors of CWP were confident they could negotiate a better deal with a commercial lender. On the second day of the hearing, Ms Hitchings testified that only the day before, CWP had secured a decision in principle in writing from a senior lender, identified as Assetz Capital, that it would support the project, subject to due diligence, and subject also to CWP obtaining the support of a subordinate lender, because a senior lender typically would not advance 100% of the costs of a project of this nature. Assetz Capital is a secured peer-to-peer business lender, and we take it that the decision in principle to which she referred was to approve CWP’s application and to structure a loan package for CWP that investor clients might offer to finance. Ms Hitchings did not envisage that CWP would encounter any difficulties in satisfying the conditions of due diligence and securing the necessary finance, rating the prospects of finding a subordinate lender in these circumstances very good.

[7] The wind turbine project has had a long gestation period, during the course of which CWP instructed a solicitor, Eilidh Ross, then of Messrs Inksters, Inverness, to advise the shareholders in the Achiltibuie Common Grazings as to their rights in such circumstances. The intervention of Ms Ross resulted in CWP revising upwards the terms of its offer of recompense to them. The initial proposal from CWP was that SWT and the grazings shareholders would receive between them 3% of the net profits generated by the turbine; the percentage was subsequently increased to 6%, with SWT receiving the total sum and remitting 3% thereof to the grazings clerk on behalf of the shareholders. Mr MacKenzie testified that although a 6% level of return would be at the lower end of the 6-10% payment range typically encountered in an ordinary commercial development, this was meliorated by the benefits that would ensue from the balance of the monies generated by the development being ploughed back into the local community, in which benefits the crofters, as members of that community, would share. In answer to the question whether ordinary commercial developers would have offered the landowners and grazings shareholders a 10% share of the net profits, Mr Mackenzie replied that they might have done, but that the project in that circumstance most likely would not have gone ahead, because an ordinary commercial development would not have got planning consent: The Highland Council as the planning authority favoured “community” renewable energy developments, as set out in Policy 68 – Community Renewable Energy Developments in the Highland Wide Local Development Plan (2012), referred to in evidence, and the perceived community benefits of the CWP scheme would have weighed in the balance in favour of its decision to grant consent.

[8] It was contended on behalf of CWP that the grazings shareholders would obtain other incidental benefits from the development, including the construction of the new road up to the base of the turbine and the area of hard standing beside it, which they might use as places to put out feed for their sheep during the winter. These benefits notwithstanding, however, not all of the grazings shareholders were won over by CWP’s proposal, and four of the objections received by Court came from, or were made on behalf of, shareholders in the Achiltibuie Common Grazings, namely Murdo MacLeod (one in his own name, and one from his wife, Sandra MacLeod), James MacLeod and Ian MacKenzie. Mr Sinclair gave evidence that, on the basis of the information he had received about the development, its effect on the common grazings would be minimal, and he acknowledged that the new stretch of road and the area of hard standing could be used by the crofters for feeding their sheep during the winter. However, in answer to the question, posed by Mr Luykens, whether the development had created a rift within the local community, his answer was an emphatic “Absolutely.” He confirmed that the grazings committee was and remained split down the middle (“50/50”) on the issue, and he summarised the current situation by explaining that the people who were for the development were for it, the people who were against it were against it, and nothing had really changed during the consultation process. Mrs Campbell, whose job title is Development Officer of CCDC, spoke to the contents of the Development Plan drawn by the Directors, a copy of which was lodged as Production 40A, and described some of the projects upon which these funds might be expended by CCDC in pursuit of its identified Development Priorities in the event of this funding source coming on stream, such as the renovation of the old Badentarbat Pier, which had fallen into disrepair, the provision of affordable housing, of which there was a severe shortage in the area, and of workshop spaces for local artisans. CCDC would be considering in due course what structures and processes should be put in place to ensure that the income generated by the wind turbine was spent in accordance with the wishes of the local community.

The circumstances in which the objections were withdrawn

[9] We related, in paragraph 1 above, that the Court, after ordering public advertisement of the making of the Application, received eight written objections thereto, representing seven separate interests, but that by the date of the hearing, all but two of those objections had been withdrawn. The objections which were withdrawn included all of those which had been submitted by or on behalf of shareholders in the Achiltibuie Common Grazings, in relation to whom no question has ever arisen as to their interest to object. Each shareholder who withdrew his objection, in intimating to the Court his decision to do so, made clear that he did so reluctantly, and that what had prompted him to do so was concern about the financial implications for him of being found liable for the expenses of the Application should he maintain his objection. Mr Luykens had lodged, as Production 15, a copy of a letter written by Harper MacLeod LLP on behalf of CWP to Ian Mackenzie dated 3 March 2016 in which, after explaining CWP’s position in response to what it understood to be the shareholders’ remaining objections to the development, it was stated:

“You should be aware that you have now triggered a formal court process which our clients are anticipating being successful in. You should be aware though that if successful our clients will seek to claim all expenses incurred in the Land Court process from the objectors.

Our clients would ask that you consider very carefully whether you wish to maintain your objection to our clients’ application.”

Although the potential extent of any such liability was not quantified in that letter, the sum of £15,000 appears to have gained common currency amongst the grazings shareholders and it seems to us likely that it emanated from CWP or its legal advisers.

[10] When we asked Sir Crispin whether he considered that it was within the spirit of the legislation that applicants for consent under section 19A should threaten objectors that if they maintained their objections, the applicants would seek an award of all expenses incurred in the Land Court process against them should they ultimately be successful, Sir Crispin initially demurred at the use of the word “threaten”, arguing that it was more reasonable for CWP to warn the objectors in advance that they might incur a liability in expenses should their objections not be upheld than to wait until the application had been heard and then move for an award of expenses against them without any prior notice. Sir Crispin did, however, acknowledge that the convention (or “normal rule”: see his Crofting Law (2000); page 94, Note 1), in applications by landlords to resume under section 20 of the 1993 Act “is that the landlord will be found liable for the crofter’s expenses, including expenses of any experts, in a resumption application, whether or not the landlord is successful …”. Section 19A of the 1993 Act was enacted to provide a means alternative to resumption by which croft land or common grazing could be made available for development. We would observe in passing that the Land Court’s long established practice in relation to resumption applications has a parallel in the practice of the Lands Tribunal for Scotland in applications for variation and discharge of land conditions before the coming into force of section 103(1) of the Title Conditions (Scotland) Act 2003 (“the 2003 Act”). There was no statutory provision in relation to the expenses of applications under the Conveyancing and Feudal Reform (Scotland) Act 1970 for variation and discharge of land conditions, and the Tribunal had “developed a clear practice of not awarding expenses against unsuccessful objectors who were benefited proprietors unless they had acted unreasonably, because benefited proprietors were simply seeking to uphold their rights: unless there was some unreasonable aspect to their opposition, they should not have to pay the applicant’s expenses”: West Coast Property Developments Limited v Lawrence Clarke & Others (LTS/TC/2005/21; 6 October 2006 (Expenses)) at page 10 of 21. Section 103(1) of the 2003 Act, by contrast, enjoined the Tribunal, in making an order as to expenses, to have regard, in particular, to the extent to which the application, or any opposition to it, was successful.

[11] Sir Crispin’s position on the section 19A expenses issue ultimately resolved itself into the proposition that a finding by the Court that his objection was unreasonable would be a pre-requisite of the making by the Court of an award of expenses against an objector. We would observe that this is a very different position to that of the rule in ordinary litigation that expenses generally will follow success which was invoked in Harper Macleod LLP’s letter dated 3 March 2016 to Mr MacKenzie. The Scottish Parliament, in enacting section 19A of the 1993 Act, may be taken to be aware of this Court’s normal rule on expenses in resumption applications, and we consider that had it intended us to adopt a different approach to expenses in applications for consent under section 19A of the 1993 Act, it could and would have so provided, as by inserting into section 19A of the 1993 Act a provision in the manner of section 103(1) of the 2003 Act.

[12] We think it significant also that section 19A(7) of the 1993 Act provides that where written objections, on one or more of the grounds mentioned in section 19(8) of the 1993 Act, have been submitted to the Court, “the Court shall hear [our emphasis] the objectors … before determining whether to give consent under this section …” It follows from all of the above that we do not think that it was appropriate for CWP’s solicitors to write in the particular terms they did to Mr MacKenzie and the other objectors. Whilst Sir Crispin disputed the characterisation of the contents of those letters, which for the reasons given in the preceding two paragraphs we consider did not reflect the proper approach to liability for expenses under section 19A of the 1993 Act, as constituting a threat to the objectors, that is how the recipients understood them and we read the letter dated 3 March 2016 from Harper Macleod LLP to Mr MacKenzie the same way.

[13] Ms Hitchings, giving evidence, was keen to tell us that the three grazings shareholders’ objections were based on fundamental misconceptions as to what CWP’s proposals actually entailed or were otherwise ill-founded, and she was also critical of them for failing to engage fully with CWP’s consultation process over the development, but the consequence of CWP’s solicitors’ attempt, presumably made on the instructions of the CWP Directors, to stifle the expression of objections to the Application, has been to deny us the opportunity to hear evidence in connection with, and to evaluate the merits of, those objections, and to assess the reasonableness of the grazings shareholders’ conduct, ourselves. We would question whether a body which places such an emphasis on the “community” aspect of its proposed development does itself any favours in being seen to act in such a heavy-handed manner against a dissenting minority within a small community. It seems to us that if indeed the objections of the grazing shareholders were as unmeritorious as Ms Hitchings contended, the interests of CCDC and CWP may have been better served by having them properly ventilated before the Court and exposed as such, rather than by seeking to suppress them, thereby potentially leaving those objectors who withdrew their objections under protest with a lingering sense of grievance towards the development and its promoters.

The interest issue

[14] After the withdrawal of the objections of the three grazings shareholders and of Mr & Mrs Rex of the nearby Badentarbat Estate, there remained only three objections live before the Court. We have already mentioned the objections of Ms Hampton and Mr & Mrs Luykens; the third remaining objection was submitted by Ian and Peter Leveson, brothers with a second home within 1 km of the site of the turbine. With a hearing in Ullapool having been fixed on 29 March 2016 (and CWP’s solicitors having been informed by the Court by letter back on 15 March 2016 that the Court was proposing to fix a hearing in the week commencing 9 May 2016), it was only on 22 April 2016 that we received from CWP’s solicitors a formal written submission on the issue of the interest of the three remaining objectors. Having considered CWP’s written submission, and the response to it submitted by Mr Luykens, we formed the impression that the interest issue was sufficiently difficult and important as to be unsuitable for determination on the basis of the written submissions, and concluded that we would indeed require to hear oral argument thereon. In the event, Sir Crispin’s oral submission at the hearing provided a more penetrating analysis of the constituent parts of section 19A of the 1993 Act in connection with the interest issue than was set out in CWP’s written submission.

[15] CWP challenged the interest of Mr & Mrs Luykens to object to the Application, on the basis that on a proper construction of section 19A of the 1993 Act, they were not – either together or separately - an “interested party” as that expression was used in sub-section (7)(b) thereof. Before considering the argument developed by Sir Crispin at the hearing in support of that position, it may be helpful to consider the credentials upon which Mr & Mrs Luykens rely to demonstrate that they were indeed within the class of persons entitled to submit written objections as respects the Application and to be heard thereon. Mrs Luykens is tenant of the croft at 191A Polbain and a shareholder in Polbain and Dornie Common Grazings, which adjoin the Achiltibuie Common Grazings and which historically have shared fank facilities with the latter grazings. There was lodged in process as Production 21, although not spoken to in evidence, a letter from the Crofters Commission (as it then was) to Mr & Mrs Luykens dated 9 February 2011, in which it was confirmed that the records of the Commission would be amended to show them as owner-occupiers of part of the croft at 191A Polbain, and CWP, in its response to the Luykens’ written objections, acknowledges that “both Mr & Mrs Luyken may have an interest on [sic] other land in the Coigach peninsula.” Under a croft diversification scheme, Mrs Luykens and her husband have developed a high-end holiday letting business known as the Brochs of Coigach, the impressive quality of which Mr Husband acknowledged, quite unprompted, in the course of his evidence, on the croft at 191A Polbain, and together they actively work the rest of Croft 191A Polbain and its share in the Polbain and Dornie Common Grazings. It is on the basis of these crofting interests that Mr & Mrs Luykens argue they have an interest to object to the Application, and whilst it was the position of CWP that these did not, as a matter of law, give the Luykens an interest in terms of section 19A(7)(b) of the 1993 Act to object as regards the Application, we did not understand CWP to dispute the veracity of that basic factual narrative. At one stage in the proceedings, Mr & Mrs Luykens sought also to rely, in qualifying an interest in terms of section 19A(7)(b) of the 1993 Act, on some sort of informal sub-let to them of the croft at 103B Achiltibuie, but Mr Luykens intervened during the course of Sir Crispin’s closing submission to confirm that he was no longer founding on this arrangement as a source of standing to object to the Application. Sir Crispin was at the time developing an argument, under reference to the terms of section 23(10) of the 1993 Act, that only legal occupiers of croft land or common grazings can have rights under section 19A of the 1993 Act which would give them an interest to submit written objections to the Court as respects a section 19A(1)(a) application or a section 19A(1)(b) intimation in terms of section 19A(7)(b) of the 1993 Act on one or more of the grounds mentioned in section 19A(8) of the 1993 Act. Section 23(10) of the 1993 Act provides that, for the purposes of sections 23 - 25 of the 1993 Act, if a croft is occupied otherwise than by (a) the tenant of the croft; (b) the owner-occupier crofter of the croft; (c) the sub-tenant of a sublet of a croft to which the Commission have consented under section 27 of the 1993 Act; or (d) the tenant of an owner-occupied croft, to the let of which the Commission have consented under section 29 A of the 1993 Act, it shall be taken to be vacant notwithstanding that it is occupied. We think he was probably well founded in that general submission, but in light of Mr Luykens’ concession, we need say no more about that argument in this Note.

[16] By section 19A(1)(b) of the 1993 Act, where every person who has rights in or over croft land or a common grazing consents to its being developed in accordance with a scheme, the landlord (or owner) or any person acting with the consent of the landlord (or owner) may intimate this to the Land Court, and is required then to send a copy of the intimation and of the appended scheme to the Commission. A person giving intimation under section 19A(1)(b) of the 1993 Act shall forthwith give public notification of the intimation (section 19A(6) of the 1993 Act) and by section 19A(7) of the 1993 Act, within 28 days after the public notification is given, (a) the Commission; or (b) any other interested party, may submit to the Court written objections, on one or more of the grounds mentioned in section 19A(8) of the 1993 Act, as respects the intimation; and the Court shall hear the objectors (if any) before determining whether to proceed under section 19A(10) of the 1993 Act as respects the intimation. Section 19A(10)(b) of the 1993 Act provides that on determining to proceed under section 19A(10) of the 1993 Act as respects an intimation, the Court shall advise the Commission that it has done so and provide them with a copy of the scheme in accordance with which the development is to take place; and the Commission shall enter that copy in the Register of Crofts. Thus, where the landlord (or owner) or person acting with the consent of the landlord (or owner) is proceeding by way of intimation in terms of section 19A(1)(b) of the 1993 Act, the Court does not, in contrast to the position under section 19A(1)(a) of the 1993 Act, give its consent to anything.

[17] Where a landlord (or owner), or person acting with the consent of the landlord (or owner), who seeks to develop croft land or common grazing opts to proceed by way of an application under section 19A(1)(a) of the 1993 Act, it may be inferred that he is not in a position to intimate to the Court that every person who has rights in or over that croft land or common grazing consents to its being developed in accordance with his scheme. Section 19A(1)(a) of the 1993 Act confers on the Court the power, on the application of such landlord (or owner), or person acting with the consent of the landlord (or owner), to consent to the development notwithstanding that some persons having rights in or over that croft land or common grazing have not consented to its being developed or indeed have actively objected thereto.

[18] By providing that the consent of the Court under section 19A(1)(a) of the 1993 Act is not to be given unless it is satisfied as to the various matters specified in section 19A(2) of the 1993 Act, the legislation affords persons who find themselves in the minority in the face of such an application with important protections. By way of example, section 19A(2)(b) of the 1993 Act provides that consent under section 19A(1)(a) of the 1993 Act is not to be given unless the Court is satisfied that to carry it out would not be unfair, with section 19A(3)(b) of the 1993 Act providing that for the purposes of section 19A(2), it is unfair to carry out a development only where to do so would have significant adverse consequences for one or more of the members of the crofting community in the area affected by the development and either those consequences would be disproportionately greater than the adverse consequences for the other members of that community or there would be no adverse consequences for those other members. What we take from these provisions is that the role of the Court, in determining whether or not to give consent under section 19A(1)(a) of the 1993 Act, is not merely to carry out a purely utilitarian calculation as to whether the carrying out of the development will bring about the greatest happiness of the greatest number; the recurring theme in sections 19A(2) and (3) is that of fairness to each member of the crofting community in the area affected by the development.

[19] It is no secret that Mr & Mrs Luykens have been long term opponents of CWP’s wind turbine development. Mr Luykens, seemingly more in sorrow than in anger, acknowledged towards the end of his closing submission that he and his wife had a different vision from that of CCDC as to how Coigach should develop in future, but that there was here no room for different visions. We heard evidence that Mr Luykens had been denied Membership of CCDC, on the basis that he was considered by the Directors not to share its Purposes, contrary to Article 6 (c) of the Articles of Association. Albeit that Mr Husband was, in Court, rather better at disguising his irritation with the Luykens than Ms Hitchings, the Directors of CWP whose evidence we heard clearly perceived them to be a tiresome thorn in their side, people who were using every means at their disposal, up to and including their intervention in the section 19A process, to frustrate the project. For his part, Mr Luykens conveyed the impression of seeing the principals of CCDC and CWP as members of an unrepresentative clique who approached matters upon the basis that it was their way or no way, thereby causing a deep and possibly lasting rift in the very community, the interests of which CCDC was supposed to be advancing.

[20] We do not doubt the sincerity of Mr Luykens’ belief that not only is the wind turbine development not in the best interests of the people of the Coigach peninsula in general, but also that it may adversely affect his and his wife’s diversified tourism-related business on the croft at 191A Polbain, which is, of course, part of “the Community”, as defined in Article 4 of its Articles of Association, that CCDC was formed to benefit. Sir Crispin expressly conceded that if Mrs Luykens had been a shareholder in the Achiltibuie Common Grazings rather than in the adjacent Polbain and Dornie Common Grazings, and could demonstrate that the development would have significantly adverse consequences for the diversified tourism-related business on the croft at 191A Polbain, then she would, in principle, be entitled to fair recompense for its effects as a member of the crofting community in the area affected by the development in terms of section 19A(2)(c) of the 1993 Act, given that section 19A(3)(d) of the 1993 Act provides that for the purposes of section 19A(2) of the 1993 Act, an effect for which there is to be fair recompense may be an effect of any kind whatsoever (and in particular need not be an effect on a croft qua croft). Ms Hitchings, in her evidence, pointed out that the Brochs of Coigach were some 4 miles away the proposed site of the turbine, and that there were 91 properties closer to the site, 23 of which were tourism-related, the implication she wished us to draw from that observation presumably being that if the majority of persons living closer to the site, some of whom with tourism-related businesses, were not objecting, then the Luykens’ stated concerns about the possible impact of the development on tourism in the locality must be unreasonable. If that indeed be her point, it seems to us to be a somewhat disingenuous one. We ourselves saw, in the course of our visit to Coigach, that the visual impact of the turbine in the landscape may indeed be more pronounced from Polbain than from Achiltibuie, Polglass and Badenscallie, notwithstanding that those villages are nearer to the site, an impression confirmed by the contents of Table 8-8 and Paragraph 14.6 of CWP’s own Environmental Statement of July 2013, prepared by Atmos Consulting, to which Mr Husband was referred in evidence.

[21] We must emphasise, however, that in determining whether or not to give consent under section 19A(1)(a) of the 1993 Act, it is no part of our task to second guess the decision of the planning authority to grant planning permission for a development. In construing section 19A of the 1993 Act, we take as our starting point that it is concerned principally with the interests of members of the crofting community in the area affected by the development, and not with the wider public interest, of which account is taken in the planning process. It is, we think, somewhat unfortunate that an expression as, at least ostensibly, unrestricted in its potential scope as “any other interested party” should have been employed in section 19A(7)(b) of the 1993 Act, because to the non-lawyer, it may invite the interpretation that anyone who is interested (in the non-technical legal sense) in the development for which the consent of the Court has been sought is thereby entitled to submit written objections to the Court as regards the application in question. We suspect that it is this relative slackness of expression in section 19A(7)(b) of the 1993 Act, together with the fact that the Court ordered public advertisement of the Application, which may have encouraged persons with no crofting interests to submit written objections to the Court.

[22] Mr Luykens asked why, if (as he interpreted Sir Crispin’s position on the interest issue to be) the only persons who qualified as an “interested party” in terms of section 19A(7)(b) of the 1993 Act were the persons having shares in the Achiltibuie Common Grazings listed in Annex VI to the Application, to whom the Application was intimated by recorded delivery letter, it should have been thought necessary for the Court to order public advertisement. The answer to his question is that section 19A(6) of the 1993 Act provides that a person making an application under section 19A(1)(a) of the 1993 Act shall forthwith give public notification of the application. By section 61(1) of the 1993 Act, “public notification” has the meaning given by section 55A of the 1993 Act. Section 55A(1) of the 1993 Act provides that for the purposes of the 1993 Act, public notification shall be given by publishing or causing to be published a notice in appropriate form in one or more newspapers circulating in the district in which the croft or, as the case may be, common grazing to which the application relates is situated, with section 55A(2) of the 1993 Act prescribing what constitutes appropriate form. With the new Crofting Register maintained by the Keeper of the Registers of Scotland being as yet a long way from completion and the contents of the internal Register of Crofts maintained by the Crofting Commission acknowledged to be less than reliable, public notification of a section 19A application may serve to bring the fact of the making of the application to the attention of people who need to know about it where the information available to the applicants as to the identities of the persons having an interest in it is incomplete or inaccurate.

[23] In the formal written submission on the issue of the interest of the (then) three remaining objectors received by the Court from CWP’s solicitors on 22 April 2016, it was argued that under section 19A of the 1993 Act, unless an objector is a member of the crofting community, as “crofting community” is defined in section 61(1) of the 1993 Act, then he or she has no interest to object. The expression “crofting community” is defined as meaning, unless the context otherwise requires,

“all the persons who (either or both) —

(a) occupy crofts within a township which consists of two or more crofts registered with the Crofting Commission;

(b) hold shares in a common grazing associated with that township.”

The crofting community of which the objector must be a member, CWP argued, is the crofting community affected by the development. Here, the Application affected only the Achiltibuie Common Grazings (otherwise the Achiltibuie, Acha-Braighe, Ach-an -Inbher, Achduart, & Achlochan Common Grazings). The township closest to the development, we were told at paragraph 6 of the written submission on the interest issue,

“is [sic] the townships of Achininver and Badenscallie. However, crofters in the townships of Achduart, Achininver, Achiltibuie, Achlochan, Badenscallie, Culnacraig and Polglass all have an association with these common grazings. The associated townships to the common grazings are therefore the Achduart, Achininver, Achiltibuie, Achlochan, Badenscallie, Culnacraig and Polglass. These townships are all within the estate largely owned by the Scottish Wildlife Trust, known as the Benmore Coigach estate.”

Upon that basis, it was submitted, the persons with an interest to object to the Application were the shareholders in the Achiltibuie Common Grazings, “and/or any other members (if any) of the crofting community (being those townships listed in 6. above)”.

[24] We did not, and do not, find this reasoning very persuasive, and although he did not expressly dissociate himself with it in the course of his oral submission, nor did Sir Crispin take the opportunity to add anything to explain or justify it. The above quoted passage appears to represent an acceptance on the part of the Applicant that “any other interested party” in terms of section 19A(7)(B) of the 1993 Act may include persons other than those having rights in or over the common grazing being developed, being here the Achiltibuie Common Grazings, but we do not profess to understand who, on this argument, those other persons would be. It is not clear to us what CWP means, in its written submission, by the townships of Achduart, Achininver, Achiltibuie, Achlochan, Badenscallie, Culnacraig and Polglass having an “association” with the Achiltibuie Common Grazings, upon the basis of which persons occupying crofts within or holding shares in a common grazing associated with those seven townships would have an interest to object to the Application, unless the Achiltibuie Common Grazings is itself the common grazing associated with those seven townships, and the persons occupying crofts within those seven townships hold shares in the Achiltibuie Common Grazings, which results in a circularity. No evidence was led by CWP to explicate what other association there might be between the seven townships and the Achiltibuie Common Grazings.

[25] More fundamentally, however, section 19A(2)(c) of the 1993 Act provides that consent under section 19A(1)(a) of the 1993 Act is not to be given unless the Court is satisfied that the scheme provides for there to be fair recompense “to each member of the crofting community in the area affected by the development [our emphasis]” for the effects of the development; the references in section 19A(2)(d)(i) of the 1993 Act to “that community” and in section 19A(2)(d)(ii) of the 1993 Act to “member of that community” refer back to the crofting community in the area affected by the development, and section 19A(3)(b) of the 1993 Act in turn provides that for the purposes of section 19A(2) of the 1993 Act, it is unfair to carry out a development only where to do so would “have significant adverse consequences for one or more of the members of the crofting community in the area affected by the development.” Whilst we agree that that someone who does not either occupy a croft within a township which consists of two or more crofts registered with the Crofting Commission or hold shares in a common grazing associated with that township cannot be a member of the “crofting community”, as defined in section 61(1) of the 1993 Act, it seems to us that these references to a member or members of the crofting community in the area affected by the development have the effect of widening the class of potential objectors to include persons other than those who occupy crofts within, or hold grazings shares associated with, a township consisting of two or more registered crofts forming one “crofting community”. CWP’s written submission, with its invocation of the seven townships having an “association” with the Achiltibuie Common Grazings, would seem to acknowledge as much. A development, in our view, may affect more than one “crofting community”. In the circumstances of the present case, if it be accepted that Mr & Mrs Luykens are members of the crofting community, as “crofting community” is defined in section 61(1) of the 1993 Act, in Polbain, the relevant question for the purpose of determining whether they have an interest to submit written objections to the Court as respects the application in terms of section 19A(7)(b) of the 1993 Act on one or more of the grounds mentioned in section 19A (8) of the 1993 Act becomes that of whether they are members of the crofting community in the area affected by this development, and that is, in our view, ultimately a question of fact.

[26] It would, in our opinion, be untenable, on the wording of section 19A of the 1993 Act, to argue that only persons having rights in or over the croft land or common grazing which is actually being developed can be an interested party entitled to submit to the Court written objections under section 19A(7)(b) of the 1993 Act on one or more of the grounds mentioned in section 19A (8) of the 1993 Act. This is because even where the landlord (or owner), or any person acting with the consent of the landlord (or owner), is in a position to intimate to the Land Court that every person who has rights in or over croft land or a common grazing consents to its being developed in accordance with a scheme appended to the intimation in conformity with section 19A(1)(b) of the 1993 Act, section 19A(6) of the 1993 Act still requires public notification of the intimation, and not only the Commission, but also any other interested party, may submit to the Court written objections, on one or more of the grounds mentioned in section 19A(8) of the 1993 Act, as respects the intimation: in other words, “any other interested party” in terms of section 19A(7)(b) of the 1993 Act may comprise a potentially wider class of persons than persons with rights in or over the croft land or common grazing being developed.

[27] That section 19A(11) of the 1993 Act should provide that, when a copy of the scheme in accordance with which the development is to take place has been entered by the Commission in the Register of Crofts, it shall, in so far as its terms so provide, be binding on not only - (a) the landlord (or owner); and (b) any member of the crofting community in the area affected by the development; but also - (c) any person who, though not described in paragraph (b) above, is - (i) a tenant of a croft; or (ii) a holder of grazing rights, in that area [i.e. the area of the development], seems to us also to militate against CWP’s narrow approach, derived at source from the definition of “crofting community” contained in section 61(1) of the 1993 Act, to the issue of who may have interest to object in terms of section 19A(7)(b) of the 1993 Act. Sir Crispin gave as an example of a person who would fall within section 19A(11)(c)(i) of the 1993 Act the tenant of a croft which had been lawfully sub-let: the tenant would not occupy the croft and so could not be a member of the crofting community in the area affected by the development as “crofting community” is defined in section 61(1)(a) of the 1993 Act. Assuming that to be correct for present purposes, the important point here surely is that if such a person will by section 19A(11)(c)(i) of the 1993 Act be bound by the scheme once a copy has been entered by the Commission in the Register of Crofts, it would seem wrong in principle that he or she would not, on CWP’s argument, be an interested party entitled to submit written objections as respects the application or intimation in terms of section 19A(7)(b) of the 1993 Act. Mr Luykens argued that CWP’s approach to the interpretation of “any other interested party” in section 19A(7)(b) of the 1993 Act was too narrow, and we consider that he was justified in doing so.

[28] Sir Crispin compared the provisions of section 19A(7) of the 1993 Act with those of section 58A (Obtaining Commission approval or consent) of the 1993 Act. He made the point that there was no equivalent in the former to the new paragraph (d) of section 58A(4) of the 1993 Act, inserted by section 48 (3)(b) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”), which provides that, in addition to, inter alia, any member of the crofting community in the locality of the land to which the application relates (including, where that land is, or is part of, a common grazing, the grazings committee or any crofter who shares in the grazing), any other person the Commission consider has a relevant interest in the application, may submit to the Commission an objection as regards the application. Sir Crispin linked this widening of the class of person who might submit to the Commission an objection as regards the application to paragraph (e) of the new section 58A(7) of the 1993 Act, as substituted by section 48 (7) of the 2010 Act, which placed on the Commission an obligation, in considering their decision on the application, to have regard to the interests of the public at large. It was Sir Crispin’s submission, as we understood it, that under section 19A of the 1993 Act, there was no wider, “non-crofting”, public interest to be taken into account by the Court. As he pointed out, the grounds of objection mentioned in section 19A(8) of the 1993 Act can only relate to the matters upon which the Court must be satisfied before it gives consent under section 19(A)(1)(a) of the 1993 Act, and the Court is not given any wider discretion to withhold its consent on grounds not mentioned in section 19A(8) of the 1993 Act.

[29] We do not have any difficulty in accepting any of the propositions advanced by Sir Crispin as set out in the immediately preceding paragraph, but whilst acceptance of those propositions provides a convincing justification for holding that the various “non-crofting” objectors did not, on a proper construction of section 19A(7)(b) of the 1993 Act, have any interest to object on the grounds mentioned in section 19A(8) of the 1993 Act as respects the Application, we do not see that they provide any a priori basis for holding, without evidence being heard, that Mr & Mrs Luykens, being at least arguably members of the crofting community in the area affected by the development, cannot be an interested party in terms of section 19A(7)(b) of the 1993 Act, and as such entitled to the opportunity to submit written objections and be heard by the Court as regards the Application before the Court determines whether to give consent under section 19A(1)(a) of the 1993 Act, for the reasons explained above.

[30] Sir Crispin sought to argue that the key to a proper understanding of section 19A of the 1993 Act was to appreciate that it was enacted to provide a means by which croft land could be made available for development without a resumption which would take it out of crofting on either a temporary or a permanent basis. Here, had the site of the wind turbine been resumed, people in the position of the Luykens would have had no entitlement to fair recompense for the effects of the development, and, he contended, they should be in no better position as a result of section 19A of the 1993 Act. We noted Sir Crispin as submitting that section 19A of the 1993 Act provided protections for “the crofters who are directly affected by the development”, and that if section 19A were to be construed in such a way as to allow of the possibility that a wider range of persons might have to be compensated than would be the case under resumption, no-one would choose to proceed by way of a section 19A application but would instead seek to resume, which would be contrary to the intentions of the Scottish Parliament in introducing the section 19A procedure.

[31] We recognise that this argument has some force, although we would comment, in relation to it, that the cumulative effect of the amendments to section 20 (Resumption of croft or part of croft by landlord) introduced by the Crofting Reform etc Act 2007 and the 2010 Act may be that securing the removal of croft land or common grazing from crofting by resumption cannot be assumed to be, in every circumstance, the easier option. In any event, our duty is to interpret the legislation which the Scottish Parliament has enacted, and as we interpret section 19A of the 1993 Act, it does seem to us that it may open the door to such an outcome on the facts of a particular case. Sir Crispin’s reference to section 19A of the 1993 Act providing protections for “the crofters who are directly [our emphasis] affected by the development” neatly focuses the issue here.

[32] Let us posit for the purposes of argument a case in which the applicant’s proposal was to site a turbine in a corner of a common grazing remote from the crofts of all of the shareholders in that common grazing but adjacent to a croft in a different township (or crofting community) with no rights in or over the common grazing, and let us suppose also that there was credible evidence that the development would have adverse effects for the crofter of that croft, whether by way of damage to his or her croft-based tourism-related business or otherwise. In such circumstances, we cannot see anything in the terms of section 19A of the 1993 Act which would disqualify such a crofter from being a “member of the crofting community in the area affected by the development” for whom any scheme would require to provide for there to be fair recompense for the effects of the development in terms of section 19A(2)(c) of the 1993 Act. Indeed, in the circumstances described, this might even be a situation in which, in terms of section 19A(3)(b) of the 1993 Act, it would be unfair to carry out the development because to do so would have significant adverse consequences for one member of the area affected by the development and those consequences would be disproportionately greater than the adverse consequences for the other members of that community. We do not think that it is either necessary or helpful, in interpreting the expressions “member of the crofting community in the area affected by the development” in section 19A(2)(c) of the 1993 Act and “members of the crofting community in the area affected by the development” in section 19A(3)(b) of the 1993 Act to interpose the word “directly” between the word “area” and the word “affected”.

[33] We would observe also that whilst by section 19A(2)(c) of the 1993 Act, the fair recompense to each member of the crofting community in the area affected by the development for the effects of the development for which the scheme must provide must include, in relation to the croft land of each such member, recompense at least equivalent to the recompense which the member might be expected to have obtained had the croft land been resumed, the basis for recompense under section 19A(2)(c) of the 1993 Act is not limited to that measure. We do not consider that CWP’s argument that interest to object under section 19A(7)(b) of the 1993 Act is restricted to those members of the crofting community in the area affected by the development who would have been recompensed had the croft land or common grazing being developed instead been resumed is supported by the wording of the section. In relation to those members of the crofting community in the area affected by the development who would have received recompense on the development proceeding by way of resumption, section 19A of the 1993 Act, as we read it, allows of the possibility that the scheme will require to provide for recompense in a sum over and above what they would have got on a resumption where the effect on either the member (section 19A(3)(c) of the 1993 Act) or on the croft qua croft, or an effect of any kind whatsoever (section 19A(3)(d) of the 1993 Act), can be shown to extend beyond the mere loss of rights to graze or otherwise use the croft land or common grazing being developed.

[34] In summary, then, we do not accept CWP’s preliminary argument as to the proper interpretation of section 19A of the 1993 Act in relation to the issue of interest to object as regards the Application in terms of section 19A(7)(b) of the 1993 Act. We do not consider that it follows that because Mrs Luykens has no rights in or over the Achiltibuie Common Grazings on which the proposed development is to take place, and “has no interest in any of the townships associated with the affected grazings”, as it was put in CWP’s written submission on the interest issue, she cannot be “a member of the crofting community in the area affected by the development” as that expression appears in section 19A(2)(c) of the 1993 Act. We do not consider that we would be entitled to hold, without inquiry into the facts, that Mr & Mrs Luykens, in consequence of their interest(s) in Croft 191 A Polbain, are not members of the crofting community in the area affected by the development, and as such, interested parties in terms of section 19A(7)(b) of the 1993 Act, entitled to submit written objections, on one or more of the grounds mentioned in section 19A (8) of the 1993 Act, as respects the Application, and we heard the grounds of objection advanced by Mr Luykens at the hearing upon that basis.

The merits of the Application

[35] The first matter upon which we require to be satisfied if we are to give consent to the development under section 19A(1)(a) of the 1993 Act is that it is for a reasonable purpose: section 19A(2)(a) of the 1993 Act. Section 19A(3)(a) of the 1993 Act applies the definition of "reasonable purpose" in section 20(3) of the 1993 Act for the purposes of section 19A(2) of the 1993 Act as it does for the purposes of section 20(1) of the 1993 Act in relation to resumption. Sir Crispin submitted that the reasonable purpose here was the generation of energy, which was one of the purposes expressly mentioned in paragraph (a)(viiia) of section 20(3) of the 1993 Act. In his written closing submission, he accepted that it was for the Court to determine whether the purpose founded upon was reasonable in all of the circumstances of the case, and he then set out a list of eight considerations which he invited us to take into account in satisfying ourselves that reasonable purpose had been established. In his oral submission also, Sir Crispin tacitly conceded that by virtue of section 19A(3)(a) of the 1993 Act, the approach of the Court to the issue of “reasonable purpose” in resumption applications, as it has been expounded upon in the case law over the years, fell to be imported into the consideration of section 19A applications, so that, for instance, it would be a valid ground of objection under section 19A(8)(a) of the 1993 Act for an objector to call into question whether the reasonable purpose was likely ever to be put into effect.

[36] We are content, for present purposes, to dispose of the Application by CWP upon that basis, but in the absence of full submissions on the point, we would wish to reserve our opinion as to whether, on a proper construction, the terms of section 19A(3)(a) of the 1993 Act will always require such a potentially wide ranging inquiry into reasonableness of purpose before the Court can be satisfied for the purposes of section 19A(2)(a) of the 1993 Act. Under section 20(1) of the 1993 Act, the Land Court may, on the application of the landlord and on being satisfied that he desires to resume the croft, or part thereof, for some reasonable purpose “having relation to the good of the croft or of the estate or to the public interest or the interests of the crofting community in the locality of the croft”, authorise the resumption upon such terms as it thinks fit. A new section 20(1AA) of the 1993 Act inserted into section 20 of the 1993 Act by the 2010 Act details additional matters which the Land Court may take into account in determining whether it is satisfied as mentioned in section 20(1) of the 1993 Act. By contrast, section 19A(2)(a) of the 1993 Act merely provides that consent under section 19A(1)(a) of the 1993 Act is not to be given unless the Court is satisfied that the development is for a reasonable purpose, the only elaboration thereof being that contained in section 19A(3)(a) of the 1993 Act that for the purposes of section 19A(2) of the 1993 Act, the definition of “reasonable purpose” in section 20(3) applies as it does for the purposes of section 20(1) of the 1993 Act. The consequences of a development not going ahead are not the same under a section 19A scheme for development as under ordinary resumption, in that under section 19A, if the development does not go ahead, the croft land or common grazing is not removed from crofting, and nothing on the ground will actually change. It seems to us to be, on the face of it, at least arguable that where the reasonable purpose being founded upon in a section 19A application is one of the purposes listed in section 20(3)(a) or (b) of the 1993 Act, not a great deal more by way of justification may be necessary.

[37] We are quite satisfied on the basis of the evidence which we heard that, as a community renewable energy development, CWP’s development is for a reasonable purpose which is likely, if it goes ahead, to benefit not only SWT and the shareholders in the Achiltibuie Common Grazings but also the wider community on the Coigach peninsula. So far as the shareholders in the Achiltibuie Common Grazings are concerned, the impact of the development on their activities will be minimal. It was not always clear to us how some of the particular points Mr Luykens sought to develop in his cross-examination of CWP’s witnesses (e.g. concerning the carbon effect of the development) related to the specific grounds of objection mentioned in section 19A(8) of the 1993 Act, but we did understand him to be arguing, under reference to ground (a), that the development is not for a reasonable purpose because there is uncertainty as to how it will be funded and so it may never be put into effect. The CWP witnesses acknowledged that the funding for the development was not yet in place, but they expressed confidence that it soon would be, and we are satisfied, on the balance of probabilities, that CWP will be able to secure the funding to enable the development to proceed. If we are wrong about that, and the development does not go ahead, Mr & Mrs Luykens will have nothing to worry about, in that if the development does not proceed, the status quo ante will prevail, and they (and the shareholders in the Achiltibuie Common Grazings) will have lost nothing.

[38] In terms of section 19A(2)(b) of the 1993 Act, we must also be satisfied, before giving our consent thereto, that to carry out the development would not be unfair, it being by virtue of section 19A(3)(b) of the 1995 Act unfair to carry out a development only where to do so would have significant adverse consequences for one or more of the members of the crofting community in the area affected by the development and either those consequences would be disproportionately greater than the adverse consequences for the other members of that community or there would be no adverse consequences for those other members. The Luykens have asserted, under reference to the corresponding ground of objection mentioned in section 19A(8)(d)(i) of the 1993 Act, that to carry out the wind turbine development would have significant adverse consequences for them in that the business model for their diversified tourism-related business depends on attracting visitors from abroad who will pay a premium price to stay in exclusive accommodation in an unspoilt natural setting. Although this was not explicitly stated by Mr Luykens, we take it to be implicit in his argument that it is his position that those consequences would be disproportionately greater for the Luykens than the adverse consequences (if any) for the other members of the crofting community in the area affected by the development because of the considerable expense incurred by them in creating the Brochs of Coigach and the different nature of the clientele their accommodation is marketed towards.

[39] Our problem with this ground of objection as respects the Application is that Mr & Mrs Luykens themselves have signally failed to place before the Court any substantive evidence which would have enabled us to conclude that to carry out the development would have any adverse consequences, let alone significant adverse consequences, for them, or that those consequences would be disproportionately greater for them than the adverse consequences (if any) for the other members of the crofting community in the area affected by the development. Mr Luykens appeared to consider it to be so self-evident a proposition as not to require proof that the erection of the turbine would have an adverse impact on tourism on the Coigach peninsula, but particularly where such an issue has already been considered as part of the planning process, we cannot proceed upon such a glaringly inadequate evidential basis. Whilst we have acknowledged that the visual impact of the turbine in the landscape may indeed be more pronounced from Polbain than from Achiltibuie, Polglass and Badenscallie, notwithstanding that those three villages are closer to the site of the development, that acknowledgment does not, by itself, provide us with any justification for holding that the development would (n.b. not “may”) have significant adverse consequences for the Luykens.

[40] The only evidence which CWP placed before the Court about the possible impact upon tourism on the Coigach peninsula of the wind turbine development consisted of documentary hearsay, at two removes, in the form of the findings of two academic studies of some antiquity about tourists’ attitudes towards windfarms, as summarised in the Environmental Impact Assessment prepared for the purposes of the planning application, and we had some sympathy with the point made by Mr Luykens when he said that no-one had asked the people who stayed with them for their views about the development. Equally, however, Mr Luykens himself did not seek to adduce evidence from past guests at the Brochs of Coigach saying that they would not be returning if it went ahead, and whilst we recognise that, as he submitted, until it has actually happened, it will be very difficult for the Luykens to prove that the erection of the wind turbine has cost them business, that submission itself may be taken as something of an admission by Mr Luykens that he to date has been unable to find evidence to support his belief that the development will drive tourists away from the Coigach peninsula. On the evidence presented to us, therefore, we are satisfied that to carry out the development would not be unfair in the sense in which the word “unfair” is used in section 19A(2)(b) of the 1993 Act.

[41] Mr & Mrs Luykens object, under reference to the ground of objection mentioned in section 19A(8)(d)(ii) of the 1993 Act, that CWP’s scheme does not provide for there to be fair recompense to them. The corresponding matter upon which we must be satisfied before we give consent under section 19A(1)(a) of the 1993 Act is contained in section 19A(2)(c) of the 1993 Act, namely that the scheme provides for there to be fair recompense to each member of the crofting community in the area affected by the development for the effects of the development. So far as the Luykens are concerned, without evidence of what the effects of the development upon them would be, we do not see how they can make anything of this ground of objection, because unless they can prove effects in the form of likely pecuniary loss or some other form of damage, there would be nothing for which they would be due recompense.

[42] The evidence available to us as to the fairness to the shareholders in the Achiltibuie Common Grazings of the level of recompense provided for in CWP’s scheme was somewhat limited in both quantity and quality. The gist of Mr MacKenzie’s evidence, which was not challenged, was to the effect that the 6% of net income to be split between SWT and the grazings committee would be on the low side for a commercial development, but that, in effect, half a loaf was better for the shareholders than no bread, because a purely commercial development most likely would not have got the go-ahead from the planning authority. Given that what the shareholders in the Achiltibuie Common Grazings are being asked to give up to enable the development to proceed is so little, we are satisfied that in the particular circumstances of the Application, the scheme does provide for there to be fair recompense to each member of the crofting community in the area affected by the development. We would emphasise that each application will turn on its own particular facts and circumstances in this regard, and the level of recompense with which we have expressed ourselves satisfied in the particular facts and circumstances of the Application by CWP should not be regarded as establishing a precedent or benchmark for all other wind turbine development schemes.

[43] The final matter upon which we require to be satisfied is that, as set out in section 19A(2)(d) of the 1993 Act, were the development [to be] carried out, (i) “that community”, meaning the crofting community in the area affected by the development, 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 section 19A of the 1993 Act (i.e. by way of resumption or a section 5(3) agreement). It seems to us that the financial benefit which the crofting community in the area affected by the development would be likely to obtain were even the entire area within the wind protection zone to be resumed would be less than the likely return should the wind turbine development go ahead. Upon that basis, we are satisfied that, were the development to be carried out, the crofting community in the area affected by the development, as represented by the shareholders in the Achiltibuie Common Grazings, would be likely to benefit financially, in that we cannot conceive as to how they might reasonably expect to be able to generate a commensurate or better rate of return from the site of the development than that which is projected to be achieved in the event of CWP’s scheme going ahead.

[44] At the hearing, Mr Luykens had a tendency, in asking questions of CWP’s witnesses, to stray into areas which, in our opinion, were not relevant to the grounds of objection mentioned in section 19A(8) of the 1993 Act. We do not consider that it would serve any useful purpose for us to elaborate upon and discuss in this Note the irrelevant lines of inquiry he sought to pursue in relation to matters such as the corporate governance of CWP and CCDC, in the absence of any attempt by him to explain how those lines of inquiry might contribute to establishing one of the grounds of objection mentioned in section 19A(8) of the 1993 Act. In all the circumstances, then, we conclude that we are satisfied that it would be appropriate for us to give our consent to the development of the Achiltibuie Common Grazings in accordance with the scheme appended to the Application by CWP under reference to section 19A(1)(a)(i) of the 1993 Act. Should either party be minded to enrol a motion in relation to the expenses of the Application, this should be done within 21 days of the date of intimation of this Order and Note.