Decisions of the Scottish Land Court

Crofters of Aignish Common Grazings (Appellants)
v
The Crofting Commission (Respondent)

Crofters of Sandwickhill North Street Common Grazings (Appellants)
v
The Crofting Commission (Respondent)

Crofters of Melbost and Branahuie Common Grazings (Appellants)
v
The Crofting Commission (Respondent)

Crofters of Sandwick & Sandwick East Street Common Grazings (Appellants)
v
The Crofting Commission (Respondent)

Case reference SLC/11/19
Case reference SLC/130/18
Case reference SLC/131/18
Case reference SLC/132/18
before
Lord Minginish, Chairman, and Tom Campbell
17 July 2019

Introduction

[1] This decision deals with appeals brought by four crofting townships in the vicinity of Stornoway, Isle of Lewis, against decisions of the Crofting Commission (“the Commission”) refusing to grant approval to proposals submitted to them under sec 50B of the Crofters (Scotland) Act 1993 (“the 1993 Act” or “the Act”) for the use of their common grazings for a purpose other than grazing, woodlands or a purpose mentioned in sec 52(9) of the Act.

[2] The four townships are (i) Aignish, (ii) Melbost and Branahuie, (iii) Sandwick and Sandwick East Street and (iv) Sandwick North Street. They are all situated on land belonging to The Stornoway Trust (“the Trust”). The four sec 50B applications were for approval of the development of community owned wind farms on the respective common grazings. The applications were opposed by the Trust, who, in conjunction with a commercial developer, have their own plans for the development of a much larger wind farm, spanning all four townships and several more. The Commission, being satisfied that the proposals were detrimental to the interests of the Trust, refused all four applications on the view that it was obliged to do so by sec 50B(2) of the Act which provides that the use proposed must not be detrimental to the use being made of the other parts of the common grazings or to the interests of the owner.

[3] Although the four appeals have never formally been conjoined, they are of such similarity that we heard them together at Edinburgh on 4 and 5 June 2019 when all four appellants were represented by Mr James Findlay QC and Mr Dennis Garrity, advocate, the Commission by Dr David Findlay, their in-house solicitor, and the Trust by Mr B J Gill, advocate.

LEGISLATION AND AUTHORITIES

[4] The following sections of the 1993 Act are relevant:

50B Use of common grazing for other purposes

(1) A crofter who holds a right in a common grazing may propose to the grazings committee (or, if there is no grazings committee, to the grazings constable) 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 (or as the case may be the grazings constable) 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 under section 49(2)(g) of this Act 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 (or grazings constable) 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 (or with the grazings constable);

(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 (or grazings constable), 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 number 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 (or grazings constable) 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 (or grazings constable) shall apply to the Commission seeking their approval for its implementation.

58A Obtaining Commission approval or consent

(1) Any requirement, under or by virtue of this Act, to obtain the approval or consent of the Commission, shall (subject to any express provision made by this Act in respect of any category of case) be complied with as follows.

(2) The application for approval or consent must—

(a) be in such form; and

(b) be accompanied by such documents and fee,

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

(3) Subject to subsection (5B), The person making the application shall—

(a) forthwith give public notification of it; and

(b) if he is not the landlord (or, where the land to which the application relates is, or is part of, a common grazing, not the owner) give written notification of it to the landlord (or to the owner).

(4) Within 28 days after public notification of an application made in compliance with subsection (2) above—

(a) the landlord (or where the land to which the application relates is, or is part of, a common grazing, the owner);

(b) any member of the crofting community in the locality of that land (including, where that land is, or is part of, a common grazing, the grazings committee or any crofter who shares in the grazing);

(c) any other person if he is identified for the purposes of this subsection by the provision which imposes the requirement mentioned in subsection (1) above; or

(d) any other person the Commission consider has a relevant interest in the application,

may submit to the Commission an objection as regards the application, being an objection of the description given in subsection (16) below.

(5) The 28 days mentioned in subsection (4) above include the day on which the notification in question is given.

(5A) Despite subsection (4), the Commission may accept an objection submitted after the end of the 28-day period if they consider there is a good reason why the objection is late.

(5B) Where the application is an application for consent to divide a croft under section 9 made by an executor under section 10(4A)—

(a) subsections (3) to (5A);

(b) in subsection (6), the words “When those 28 days have elapsed”;

(c) in subsection (12A), paragraph (b); and

(d) subsections (16) and (17),

do not apply.

(6) When those 28 days have elapsed the Commission must, subject to subsection (6A), decide the application by —

(a) granting it;

(b) granting it subject to conditions; or

(c) refusing it.

(6A) Where—

(a) the application for consent to divide the croft is made by an executor under section 10(4A); and

(b) it relates to a bequest of the tenancy of the part of the croft comprising the site of the dwelling-house on or pertaining to the croft to one natural person and the tenancy of the remaining part to one other such person,

the Commission must grant the application (whether or not subject to conditions).

(7) In considering their decision on the application, the Commission must have regard to the following—

(a) in the case of an application relating to a croft—

(i) whether any person is or will be ordinarily resident on, or within 32 kilometres of, the croft;

(ii) whether the croft is being or will be cultivated or put to such other purposeful use as is consented to under section 5C(4);

(b) the interests of the estate which comprises the land to which the application relates;

(c) the interests of the crofting community in the locality of that land;

(d) the sustainable development of that crofting community;

(e) the interests of the public at large;

(f) any objections received under subsection (4) or (5A);

(g) any plan of the Commission approved and published under section 2C;

(h) any other matter which the Commission consider relevant.

52A Appeal to Land Court: general

(1) An appeal shall lie to the Land Court, on one or more of the grounds mentioned in subsection (3) below, against—

(a) any decision, determination or direction of; or

(b) the imposition of a condition by,

the Commission on an application made to them under this Act.

(2) The appeal—

(a) is to be made at the instance of the applicant or of any person with an interest in the application; and

(b) must be brought within 42 days after the Commission dispose of the application.

(3) The grounds are that the Commission, in reaching their decision or as the case may be in determining as they did, in making their direction or in imposing the condition in question—

(a) erred on a point of law;

(b) made a finding as to a fact material to the decision, determination, direction or imposition but did not have sufficient evidence on which to base that finding;

(c) acted contrary to natural justice,

(d) took into account certain irrelevant or immaterial considerations;

(e) failed to take into account certain relevant or material considerations;

(f) exercised their discretion in an unreasonable manner.

(4) In an appeal under subsection (1) above the Court may—

(a) confirm the decision, determination, direction or imposition;

(b) direct the Commission to come to a different decision, make a different determination or direction or impose a different (or no) condition; or

(c) remit the case to the Commission without so directing them.

(4A) The Court may, if it considers it appropriate in consequence of any decision on an appeal under subsection (1), order the Keeper to rectify the Crofting Register.

(4B) The Commission may be a party to any appeal to the Land Court under this Act or in any proceedings on a question coming before that Court on an application under section 53(1) of this Act.

(5) …

(6) Subsections (1), (2) and (4) above do not apply where an appeal lies under section 25(8) or 38A of this Act.

Authorities

Submissions

For the appellants

[5] Mr Findlay moved us (i) to recall the decisions appealed against, (ii) to determine that the Trust had no relevant interest in these matters for the purpose of the 1993 Act, (iii) to determine that the Trust had not provided any evidence of detriment to a relevant interest for the purposes of the 1993 Act, and (iv) to remit consideration of the applications to the Commission for the Commission to determine them on that basis and in accordance with sec 58A of the Act. He adopted what was said in the Grounds of Appeal and in his written notes of argument and what follows is an amalgam of those and what he said in oral submissions.

[6] His first submission, corresponding to the first ground of appeal, was that the Commission had erred in law by taking the wrong approach to the legislative provisions. Section 50B governed procedure up until the point at which the crofters voted on the proposal and applied to the Commission for their approval. Once it got to the Commission, different considerations applied and sec 50B was no longer relevant. The Commission had erred in law in determining that it was not empowered to consider the merits of the applications because of the terms of sec 50B(2). That was something on which the Commission were neither asked nor empowered to make a decision. Once the matter reached the Commission, it was sec 58A that applied, not sec 50B. Section 58A(7) listed matters to which they must have regard but here the Commission had not got as far as that because they considered the terms of sec 50B(2) to be “mandatory” (their word) and binding upon them.

[7] If the Commission’s approach was correct, the provisions of sec 58A(7) would be rendered redundant because everything would turn on the question of detriment, considered as a preliminary issue rather than as part of the balancing exercise envisaged in sec 58A(7).

[8] The second ground of appeal was that the Commission had made a finding as to a fact material to their decision (i.e. the finding of detriment) without having sufficient evidence on which to base it. The Trust had produced no evidence of detriment. The Commission, in their determination letter had not specified what relevant interest of the landowner was affected by the sec 50B proposals, nor to what extent. At present the Trust had no right or title to carry out the larger Stornoway Wind Farm development because it was not entitled to use the land for that purpose, given crofters’ extant rights and the absence of the requisite consent from this Court. But, even if they had such an interest, they had not produced any evidence of detriment to that interest. The Commission therefore did not have evidence upon which to base their finding of detriment: they had simply taken the Trust’s word for it. That approach would render any wind farm development on common grazings impossible except with the consent of the landowner, rather than taking account of the landowner’s interest as part of the balancing exercise under sec 58A(7). It would elevate the landowner’s interest to a condition precedent rather than being one of a number of factors which the Commission had to consider and balance under that subsection.

[9] In two of the present cases – the two Sandwick applications – no objection from the Trust had been received by the crofters before they voted in favour of the proposal, so they had no evidence of detriment to the Trust. On the Commission’s and the Trust’s approach what was a perfectly valid sec 50B proposal (valid since there was no claim or evidence of detriment) could be turned into an invalid application if the landowner chose to complain of detriment once things got to the Commission. This gave the landowner a trump card which could be played at any time, whereas the correct approach was the foresaid balancing exercise under sec 58A(7). The statutory conditions did not allow for that: if the crofters reached a valid decision under sec 50B, that was an end of reference to that section and the Commission had to carry out the balancing exercise under sec 58A(7). The Commission had no appeal function in relation to what the crofters had done under sec 50B: that was challengeable only by judicial review.

[10] Asked whether sec 58A was not predicated upon the Commission being presented with a valid, competent application, Mr Findlay replied that it was predicated upon the question of prejudice having been addressed by the crofters under sec 50B, which had been done in this case, at all events in the Aignish and Melbost cases where objections as to detriment had been received and addressed.

[11] If, contrary to his primary position, the Commission were entitled to make a finding of detriment to the Trust’s interests, Mr Findlay submitted that they ought to have considered whether that detriment could be met or mitigated by the imposition of conditions as part of granting approval. They had made no attempt to do so.

[12] Ground of Appeal 3 challenged the Commission’s right to take account of objections received late. (It should be noted that this ground of appeal does not arise in the Aignish application.) The applications to the Commission had been made and advertised in September/October 2016 but the Trust’s assertion of detriment was not made until April 2018, long after the 28 day period for the lodging of objections contained in sec 58A(4) had expired. No good reason had been given as to why the objections were so late and in the absence of such the Commission had not been entitled to exercise the discretion they possessed under subsec (5A) to receive objections late. The result of that was that the Commission had taken account of certain irrelevant or immaterial considerations.

[13] Conversely, the Commission had failed to take into account certain relevant or material considerations (Grounds of Appeal 4(a) and 4(b)), including the interests of the crofting community and the sustainable development of that community. The interests of the crofting community had been expressly excluded by the Commission in a letter to the applicants dated 22 May 2018 in which they had said that they were not empowered to balance the interests of the estate with the interests of the crofting community because sec 50B(2) was mandatory.

[14] The Commission had also failed to take into account the possible benefits of the crofters’ proposals to the Trust.

[15] Ground of Appeal 5 was that the Commission had exercised their discretion in an unreasonable manner, in the sense that they had not exercised their discretion at all. They had regarded themselves as forbidden to proceed to that stage (i.e. the sec 58A (7) stage) by the “mandatory” terms of sec 50B (2). That was an error of law which had prevented the Commission from exercising their discretion as they ought to have done. Their various other failings, in terms of the earlier grounds of appeal, also amounted, cumulatively, to the unreasonable exercise of any discretion they were purporting to exercise. In particular, the taking of the Trust’s statements on detriment pro veritate, without considering how the crofters’ proposals might benefit the Trust and without considering the possibility of granting approval subject to conditions was fatal to the reasonable exercise of discretion.

Additional points re the Aignish appeal

[16] As noted above, the submission that the Commission were not entitled to take account of the Trust’s objections because they were so late does not apply in the case of Aignish. It is also different in a couple of other ways. Firstly, whereas in the other three appeals the Commission sustained only one of the Trust’s seven complaints of detriment, in the Aignish case it upheld two of nine complaints and made no finding in respect of a third. One of the two upheld was the same ground as was upheld in the other appeals – that the crofters’ proposal was detrimental to the Trust’s intention to pursue the much larger Stornoway Wind Farm project - and the other was that the wind turbines and other semi-permanent equipment associated with the sec 50B scheme would likely accede to the land with the consequence that, if the grazings committee became unable to fulfil their obligations, liabilities in relation thereto would likely fall on the Trust.

[17] In upholding this second ground of detriment in the Aignish case, the Commission had erred in law because accession happened as a matter of law where supported by the facts and was not, therefore, a simple matter of fact for the Commission to determine. There was no proper legal analysis of the situation which entitled the Commission to make a finding of detriment of that kind.

[18] In relation to the allegation of detriment in respect of which they had not found it necessary to make a determination, that was irrational since in the three other appeals the same complaint had been found not to have been established.

[19] The Aignish appeal is also different in that it contains an additional ground of appeal, not found in the other three appeals, arising from proposed amendments to the plans for the Stornoway Wind Farm. Apparently a new planning application, which is presently with the Planning Department of Comhairle nan Eilean Siar, involves only one turbine on the Aignish Common Grazings (compared to the two presently planned) and, it is argued, avoids any conflict with the Stornoway Wind Farm and, therefore, any detriment to the interests of the Trust as landowners. In terms of Ground 3(c) of the Aignish appeal, it is argued that this is something of which the Commission ought to have been made aware by the Trust and, had they been made aware of it, a material consideration which they ought to have taken into account. This ground was not pressed by Mr Findlay in his oral submissions but nor did he abandon it.

For the Crofting Commission

[20] Dr Findlay invited us to refuse the appeals and confirm the Commission’s decisions. Alternatively, if we were to uphold the appeals, we should remit matters to the Commission for further consideration.

[21] His submissions were in five parts: (i) that the Commission had been entitled to consider the issue of detriment to the landowners under sec 50B(2) as a preliminary issue; (ii) that the Commission were entitled to take the landowners’ objections into account, so had not taken irrelevant or immaterial matters into account; (iii) that the Commission had had an adequate basis in evidence for a finding of detriment; (iv) that the Commission’s decision under sec 50B(2) was conclusive of matters and that they did not, therefore, have to assess other factors in terms of sec 58A(7) or sec 1(2A) of the Act; and (v) that they had exercised their discretion properly.

[22] Of these, the appeals were likely to turn on (i), whether the Commission had been entitled to consider the issue of detriment under sec 50B(2). The structure of sec 50B(2) was such that, in order for there to be a relevant and valid proposal to be discussed and voted upon under subsec (3), the requirements of subsecs (1) and (2) had to be satisfied. Absent satisfaction of these requirements, a grazings committee would not be entitled to apply to the Commission for approval of a proposal. Moreover objections received by the Commission under sec 58A(4) or (5A) could take the form of an objection as to the validity of the application under consideration. However, it was fundamental to the Commission’s position that sec 58A was predicated on a valid application and, if the particular application under consideration was not valid, subsec (7) of sec 58A simply did not come into play. So what had happened here was that the Commission had processed these applications under sec 58A until such time as it became apparent that there was an issue as to their validity in terms of sec 50B. Having come to the conclusion that the applications were invalid because they involved detriment to the interests of the landowners, the applications were refused without the subsec (7) stage having been reached.

[23] Whereas the extent of detriment would be a relevant factor under sec 58A(7), it was immaterial (except, perhaps, to the extent that it must not be de minimis)in relation to sec 50B(2), which contained no requirement that detriment had to be substantial. In any event assessment of fact, the making of findings-in-fact and the weight to be given to the facts were all matters primarily for the decision-maker; City of Edinburgh Council v The Secretary of State for Scotland at pp 44-45, Moray Council v Scottish Ministers at paras [29] and [30], Puhlhofer and Anr v Hillingdon London Borough Council at p 518, Nicolson v Crofting Commission at paras [3], [4] and [7], MacGillivray v Crofting Commission at paras [63] to [69].

[24] In this case the Commission had been entitled to have regard to all the preparatory work already invested in the development of the Stornoway Wind Farm, in terms of negotiations, drawing up Minutes of Agreement and leases, obtaining planning consents and applying for sec 19A consent to this court. Although it was not certain that the Stornoway Wind Farm would proceed something akin to “hope value” in the planning world already existed to which the Commission had been entitled to have regard when assessing the question of detriment. Reference was made to Multi-Link Leisure Developments Ltd v North Lanarkshire Council at para [36]. The Commission had not simply taken the Trust’s statement of grievance pro veritate. They had applied their minds to the question whether detriment was established and found that it was. They had done so on the basis of the information available to them, both from the Trust and the grazings committees. The Commission were under no obligation to hold a hearing if they did not think it necessary; Stewart v Crofting Commission at para [41].

[25] As to the late acceptance of objections, the Commission had a wide discretion in terms of sec 58A(5A). There had been uncertainty as to whether the applications had been intimated to the Trust by the grazings committees and the Commission had told the Trust that they would be in further contact with them once they were satisfied that valid applications had been received.

[26] As to any obligation on the Commission to consider the possibility of granting approval subject to conditions, that would only arise at the sec 58A stage, not when the question was whether an application which was valid in terms of sec 50B had been received.

For the Stornoway Trust

[27] Mr Gill invited us to refuse the appeals and confirm the Commission’s decisions.

[28] None of the grounds on which the Court would be entitled to interfere with these decisions had been made out. At the centre of this case was a crucial finding-in-fact which had been skirted around in the debate so far. It was contained in the Commission’s decision letters of 14 September 2018 and read:

“The Commission accepts that implementation of the section 50B proposed use would make more difficult, and could prevent, the implementation of the landlord’s own preferred larger Stornoway Wind Farm development, in which the landlord has invested time and resources. The Commission further accepts that such an impediment to the implementation to the larger Stornoway Wind Farm development would be detrimental to the interests of the landlord.”

[29] That was a finding of immediate, present detriment as at the time of the Commission’s decisions. That detriment was already in existence and known about when the crofters had voted on the sec 50B proposals and submitted them to the Commission. There was no question of the Commission rendering invalid something which had previously been valid.

[30] Mr Gill then took us through the general principles which apply to appeals of this kind but, since these are not controversial, we need not take time on them here. Suffice to say that we were referred to Wordie Property Co Ltd v Secretary of State for Scotland, Noble v City of Glasgow District Council and, from the Court’s own decisions, D’Angeli v The Crofting Commission, Eunson v The Crofting Commission, MacDougall v The Crofting Commission, MacGillivrary v The Crofting Commission, MacKinnon v The Crofting Commission and Nicolson v The Crofting Commission.

[31] The Commission had been correct in their decision that the question as to whether the proposed use of the common grazings would be detrimental to the interests of the owners was a mandatory and preliminary question which had to be addressed before going further. That was clear both from the express language of sec 50B and on a purposive construction of its provisions.

[32] In terms of the express language, a crofter’s right to make a proposal to the grazings committee under sec 50B(1) was restricted by the terms of subsec (2)(b) which provided that the proposed use “must not be such as would be detrimental to … the interests of the owner”. From that prohibition three propositions flowed: (i) that it was not open to a crofter to propose a use that was detrimental to the interests of the owner, (ii) that such a proposal could not validly be put to a vote at a meeting of grazings shareholders under subsec (3) and (iii) that such a proposal could not form the basis of a valid application to the Commission under subsec (6).

[33] Section 50B had to be read as a whole. The appellant’s contention that an application to the Commission was made under subsec (6), not subsec (2), was entirely misconceived because an application under subsec (6) had no separate existence from the proposal under subsecs (1) and (2) which led to it.

[34] As to a purposive approach, to interpret the section in any other way would mean that the owner of the land would not be able to protect his interests. These interests included the right to use and develop the land subject to the statutory controls contained in the Act. The appellants complained of unfairness but the true unfairness and absurdity would be if the final, once-and-for-all, determination of the question of detriment was in the hands of the very entity (the crofters and the grazings committees) whose interests were opposed to the landowner’s.

[35] Mr Findlay was in error in arguing that secs 50B and 58A constituted two separate and independent codes, so that once the steps required in sec 50B had been taken it was not to be considered further. Section 58A(1) included the qualification that the requirement to process any application for the consent etc. of the Commission conform to sec 58A was “subject to any express provisions made by this Act in respect of any category of case”. Section 50B was such an express provision and, unless its requirements were satisfied, sec 58A did not come into play.

[36] Counsel agreed that his approach had the effect of making detriment to the landowner the paramount consideration but submitted that that was the correct result. In that regard, it was important to keep in mind that the rights of the Trust in the land and the rights of the crofters over it were different. It was wrong of the appellants to refer to the common grazings as their land. It was not their land: they only had grazing rights over it. These rights were not such as would entitle them to grant leases of the land to developers. Only the Trust could do that. Consistently with that, if we understood counsel’s argument correctly, the scheme of the legislation was not to allow crofters’ proposals under sec 50B to defeat the exercise by the owners of their (greater) rights. There was no unfairness in protecting the owner’s interests in this way nor did it amount to a veto: it was merely the reasonable protection of the owner’s interests.

[37] If, contrary to the Trust’s primary position, the provisions of sec 50B were thought to be ambiguous, under reference to what was said by Lord Rodger in Martin v Most at para [75], that could be resolved by looking at the report of the proceedings of the Environment and Rural Development Committee of the Scottish Parliament when discussing the bill which became the Crofting Reform etc. Act 2007, the Act which introduced sec 50B into the 1993 Act. Reference was made to a passage from the speech of the then Deputy Minister for Environment and Rural Development at col 3741 of the Official Report of the Committee’s deliberations on 22 November 2006 as making clear that the provision under discussion was “not a backdoor route to crofting community control of the owner’s interest in common grazings”. The section referred to also narrates the refusal as unnecessary, by the Minister, of an amendment which sought to repeat the requirements of the proposed new sec 50B(2) in the provisions relating to the Crofting Commission (presumably a reference to sec 58A, also inserted into the 1993 Act by the 2007 Act), the Deputy Minister saying “I am in absolutely no doubt that, in deciding whether to approve an application, the Commission will be required to satisfy itself that the requirements of that subsection [i.e. sec 50B(2)] are met”.

[38] Even if the rule against infringing Parliamentary privilege applied to proceedings of the Scottish Parliament, this case would fall within the exception recognised in Pepper v Hart, it being a case “where the very issue of interpretation which [we are] called upon to resolve has been addressed in Parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue” (Lord Bridge at 617B).

[39] Given all of that, the Commission had been correct to address, as a preliminary matter, the question of whether it had before it valid applications under sec 50B(6). Having addressed that question and found in fact that the proposal involved detriment to the interests of the landowners, their conclusion that they were not empowered to consider the applications further was correct.

[40] The second ground of appeal (the alleged inadequacy of the evidence on which the foresaid finding-in-fact had been made) was no more than a disagreement, on the evidence, with the Commission’s finding-in-fact. What weight to give evidence was entirely a matter for the Commission; City of Edinburgh Council v The Secretary of State for Scotland at 44B-D. All that mattered was the existence of detriment; there was no requirement in sec 50B(2) that it be significant or material, although the position of the Trust was that it was both significant and material.

[41] The existence of detriment was not disputed by the appellants. What was in dispute was where and how it was to be brought into consideration by the Commission: whether as part of an examination as to whether the requirements of sec 50B were met or as one of the factors to be balanced under sec 58A(7).

[42] The evidence which the Commission had before them was in the form of correspondence from both the Trust and the appellants addressing the question of detriment. That correspondence comprised the sec 50B applications themselves, all of which addressed the question of detriment, the objections lodged on behalf of the Trust and responses to these objections from the Sandwickhill North Street, Melbost & Branahuie and Sandwick & Sandwick East Street grazings committees. None of the attacks made in the grounds of appeal amounted to saying that the Commission did not have sufficient evidence to find, as a matter of fact, that the proposed use would be detrimental to the Trust’s interests.

[43] The third ground of appeal (that the Commission had taken irrelevant or immaterial considerations into account) was misconceived, since the objections were plainly both relevant and material, and was really an attack on the Commission’s discretionary decision to allow late objections to be received. Counsel explained the circumstances in which the objections came to be received late. These are set out in our discussion section below. It was submitted that the Commission’s exercise of their discretion to allow these to be received late had been reasonable in the circumstances. Even if that were not the case, however, it would make no difference because the question of detriment was a “preliminary threshold matter” which the Commission had to address in every case, in the same way as competency was always pars judicis. Asked upon what evidential base the Commission could consider the question in the absence of objections from the landowners, Mr Gill pointed to the existence of the sec 19A application for the development of Stornoway Wind Farm which was known to the Commission. They could also, he submitted, take account of anything else known to them.

[44] As for failing to take into account relevant and material matters, the stage of considering matters such as the possible benefits of the sec 50B proposals to the landowners had not been reached. The only question was whether the proposed use would be detrimental to the owners’ interests and, once that was answered in the affirmative, no further procedure was possible. No question of separate benefit could affect the fact that the proposals were detrimental to the landowners’ interests. Even an “alleviated detriment” (alleviated because of some element of benefit) was still a detriment.

[45] As for the Commission having exercised their discretion unreasonably, what was required was a decision “verging on absurdity”; Puhlhofer v Hillingdon London Borough Council at 518B-E. That test was not met here.

[46] As to the Aignish appeal, the appellants were complaining about (a) a failure to make a finding-in-fact (in respect of one of the Trust’s complaints of detriment) and (b) a finding-in-fact which the Commission had not in fact made (that the wind farm’s infrastructure and equipment would become the Trust’s property, and therefore its responsibility, by accession). In relation to the first of these, a failure to make the same finding-in-fact in the Trust’s favour as they had made in the other applications could not have influenced the overall decision made (which was in the Trust’s favour) and was therefore irrelevant to an appeal against that decision. In respect of the latter, all the Commission had done was find that accession was likely to happen: they had not held that it actually would.

[47] In relation to Ground 3(c) of the Aignish appeal (failure to take account of the amended proposals for the Stornoway Wind Farm now before the local authority), although this had not been pressed by Mr Findlay, it was important to point out that the Trust had not suppressed this information. The fact was that the new planning application had only been made on 3 May 2019, after the Commission had issued their decision. No decision had yet been taken as to which version of the Wind Farm would be built even if the new application was granted.

[48] If, contrary to his submissions, particular aspects of the Commission’s decision-making process were flawed and certain grounds of appeal were found established, the appeals would still fall to be dismissed because the Commission’s decisions were, in any event, inevitable, given that the detriment to the Trust’s interests was self-evident to all concerned, including the Commission. In this regards Eunson should be followed.

Discussion

Ground of Appeal 1 – sec 52A(3)(a) – that the Commission erred on a point of law

[49] The crux of these appeals is whether the Commission were entitled to enter upon the question whether the applications before it were valid in terms of sec 50B. It is the appellants’ position that, subject to the possibility of judicial review, only the grazings committees had power to determine that question and that once they had submitted proposals to the Commission the Commission had no alternative but to accept the applications as valid sec 50B applications. The position of the Commission and the Trust is that it is fundamental to the validity of the applications that the proposals they contain must not be detrimental to the interests of the Trust as landowners (sec 50B(2)(b)) and that the Commission is not only entitled but obliged to address that question, if it is raised (and perhaps even if it isn’t), with the result that, if they find detriment to be established, they must reject the applications without embarking on the balancing exercise prescribed in sec 58A(7).

[50] We notice immediately that, although it is true that the legislation does not expressly give the Commission an appellate or reviewing role in relation to decisions of grazings committees under sec 50B, the position taken by the appellants produces an artificial and undesirable result in that it requires the Commission to process an application which it believes to be invalid. Approaching our task as a matter of statutory construction in the stricter sense, however, as opposed to testing the appellants’ argument by its results, it will not be doubted that, in terms of sec 50B(2), a proposal for the use of common grazings land for a purpose which would be detrimental to the interests of the landowner is not a valid proposal, by which we mean a proposal which the grazings committee are entitled to submit to the Commission for their approval in terms of subsec (6). The language of subsec (2)(b) is, after all, quite explicit: “The use proposed must not be such as would be detrimental to … the interests of the owner” (emphasis added).

[51] The appellants do not demur from that. On the contrary, it is accepted that had they formed the view that their proposals were detrimental to the landowners’ interests they could not have taken them further. It is only because they came to the opposite view that they felt able to submit their applications to the Commission.

[52] In terms of subsec (6) what a grazing committee sends an application to the Commission for is “their approval for its implementation”. A question immediately arises as to how the Commission can possibly be expected to approve a proposal which they believe to be invalid. Part of the approval process must surely be that the Commission satisfy themselves that what they have before them is a valid proposal which they can competently approve. In this respect sec 50B applications are in no different position from any of the other matters which come to the Commission for their consent or approval under the 1993 Act: if the Commission are aware of facts and circumstances which would make the application incompetent they are entitled, indeed obliged, to refuse it.

[53] In our view the matter can be tested this way. Had sec 50B comprised only subsecs (1) and (2) and had subsec (1) entitled the crofter there in contemplation to submit his proposal directly to the Commission for approval, rather than to the grazings committee, it cannot be doubted that the Commission would have to satisfy themselves that the proposed use was not detrimental to the interests of the owner. That, after all, is a fundamental requirement of a valid proposal in terms of subsec (2). All that is different about sec 50B as it is in fact drafted, is that the proposal has to go through the conduit of the grazings committee and get a majority of the votes cast at the meeting held in terms of subsec (5). In that regard one notes that the function of the grazings committee is administrative and facilitative, not quasi-judicial. The grazings committee are not required to form a view of the validity of the proposal, although they no doubt could do that. On the contrary, subsec (3) directs them to summon a meeting of shareholders to discuss the proposal and vote on it. If the vote is in favour, the Committee has to (“shall” is the word used in subsec (6)) submit it to the Commission for approval. These provisions, administrative and facilitative as they are, do not support the interpretation placed on them by the appellants. Saying nothing about the facts of the present appeals for the moment, their approach involves conferring on the vote taken at the shareholders’ meeting the Midas touch of rendering valid a proposal which up until then may have been invalid. That is simply not a power with which grazings committees or grazings shareholders are invested in terms of the section.

[54] If it is objected that sec 50B no more confers a power on the Commission to decide on the validity of an application than it does on the grazings committee, there is a distinction between the Commission, as an objective, statutorily constituted, regulatory body performing a quasi-judicial function and a grazing committee, as a body which is not at arm’s length from the shareholders but is, on the contrary, subject to them (in that they can be voted out), and which is not statutorily empowered or obliged to carry out a regulatory role: it is easy to see which body is best suited to deciding the question of validity.

[55] In our view, therefore, nothing in sec 50B takes away from the Commission the power they have in any other application for approval or consent, to refuse an application as incompetent. It is true that nothing is sec 58A expressly confers such a power on the Commission, in relation to any application, but it is surely a given that the Commission are entitled to investigate any issue as to validity and are not entitled to approve applications which they believe to be invalid.

[56] Mr Findlay objected that approaching matters in this way elevates the landowner’s interest into a veto and would render sec 58A(7) redundant. It is, however, possible to look at matters the other way round and ask what the point of the prohibition of detriment to the landowner’s interests in sec 50B(2) is if, in fact, questions of detriment are to be dealt with in the general balancing exercise of sec 58A(7)? It seems to us that including this prohibition in sec 50B(2) shows very clearly that the Parliament intended it to be regarded as a fundamental, threshold or gateway condition of validity, separate and distinct from sec 58A(7)(b). So, if it has been elevated above all the other considerations listed in subsec (7) in the way of which Mr Findlay complains, that, it seems to us, has been the Parliament’s doing and the Parliament’s intention. If that had not been intended no mention need have been made of detriment to the landowner’s interests in sec 50B(2) and it could instead have been left to be dealt with in the sec 58A(7) balancing exercise.

[57] Certainly Mr Gill, for his part, did not shrink from accepting Mr Findlay’s proposition. On the contrary, he said it was the correct, intended result. He prayed in aid, in the event of any doubt, what was said by the Deputy Minister for Environment and Rural Development in the Stage 2 debate on the bill that became the Crofting Reform etc. Act 2007 at a meeting of the Environment and Rural Development Committee on 22 November 2006. Part of the passage on which he relied is quoted at para [38] above but it is worth setting it out more fully here:

“There has been considerable misunderstanding of the purpose and implications of the section [i.e. what was to become sec 50B of the 1993 Act]. In the light of some of the more inaccurate comments, it is not surprising that some owners are concerned. This is not a backdoor route to crofting community control of the owner’s interests in common grazings. … No one will use the provisions to build houses or wind farms on grazings, as the owner’s rights – including the right to resume – will persist. This is about facilitating new uses that would not be detrimental to existing uses by the graziers or the owner. … Amendment 160 seeks to repeat the requirements of proposed new subsection 50B(2) of the 1993 Act so as to apply those to the Crofters Commission. That may reflect a misunderstanding over the drafting of section 30. I am in absolutely no doubt that, in deciding whether to approve an application, the Commission will be required to satisfy itself that the requirements of that subsection are met.” [Col 3741 of the Report of Proceedings]

[58] Mr Findlay, in a response to Mr Gill’s reliance on this passage, submitted that there was no need to resort to Parliamentary material in this case since there was no ambiguity in the legislation but, if there was, the same rules, in terms of Pepper v Hart, applied to the Scottish Parliament as applied to the UK Parliament. Moreover, if we were minded to look at this material, we should also note what had been said by a different Deputy Minister at Stage 3 of the bill on 25 January 2007 at cols 31523 and 31524 of the Report of Proceedings.

[59] We do not need to resolve the conflict between counsel as to whether Pepper v Hart applies to the Scottish Parliament because, even if it does, the foregoing quotation very clearly satisfies Lord Bridge’s test, at page 617B of Pepper v Hart, in that “the very issue of interpretation which [the court] is called upon to resolve has been addressed in Parliamentary debate … where the promoter of the legislation has made a clear statement directed to that very issue”.

[60] Resort to Parliamentary material is permissible only if there is any ambiguity as the terms of sec 50B. We think it is possible to interpret both sec 50B and 58A without such resort but we are, nevertheless, comforted by the fact that the Deputy Minister’s very clear statement accords with our understanding. Nothing said by a different Deputy Minister at Stage 3 of the bill’s progress, in the passage to which Mr Findlay took us, seems to us to contradict or qualify what is said in the foregoing passage.

[61] We think Mr Gill was also right to draw attention to the distinction between the rights of a grazier and the rights of an owner of common grazings. They are of a completely different kind. What sec 50B does is provide a vehicle whereby crofters with shares in the grazings can propose additional uses beyond the traditional rights of grazing, peat-cutting and thatch-taking. But (a) the express provision protecting the interests of the landowner and (b) the absence of the powers which would be required to compel a landowner to do whatever was necessary (such as grant a lease of land) to facilitate the proposed development show that what was envisaged was consensual development or, if not always that, at least development which made no great inroads on the landowner’s rights and interests. Section 50B is, we think, to be seen along with sec 19A (both introduced into the 1993 Act by the 2007 Act) as a package of ways in which new uses of common grazings could be facilitated, on the initiative of the graziers under sec 50B and the owners under 19A, without the need for resumption. However, in relation to what we have just said about the absence of enforcement powers in sec 50B, it is pertinent to observe that neither it nor sec 58A contain an equivalent provision to sec 19A(11), which makes an approved sec 19A scheme binding on both crofters and landlords, once entered in the Register of Crofts.

[62] Does this interpretation give the landowner, in Mr Findlay’s words, a trump card which he can play at any time? No. It leaves a decision as to the existence of detriment in the hands of the Commission. In the present case the Commission did not hold the applications invalid simply because the Stornoway Trust asserted detriment. Indeed they rejected all but one of the seven grounds of detriment advanced by the Trust in the Melbost & Branahuie, Sandwick & Sandwick East Street and Sandwick North Street applications and all but three out of nine in the case of Aignish. Where grounds were upheld it was because the Commission believed themselves to have sufficient evidence to support these grounds. In order to prevent a sec 50B proposal from being approved landlords will not only have to assert detriment, they will have to prove it.

[63] Will any detriment do? Section 50B does not say it has to be substantial or significant or more than de minimis. Obviously it has to be real, not spurious. Beyond that, there may be room for the view that detriment need not always be fatal to the validity of an application and that there may be minimal levels of detriment best left to be part of the balancing exercise of sec 58A(7); in other words room for at least a de minimis exception. However, we do not need to express a concluded view in these appeals since the level of detriment found by the Commission was significant, indeed substantial. What happens will often depend on the attitude of the landowner. There will be cases, as here, where detriment is raised as affecting the validity of the application, in which case the Commission will have to address it (and the landlord, to succeed, will have to prove it). There will be others in which the landowner is quite happy to let any element of detriment be taken account of as part of the balancing exercise under 58A(7).

[64] Our interpretation does mean that a finding of (at least more than de minimis)detriment at the outset prevents the Commission ever getting as far as sec 58A(7) but that is not a surprising conclusion given our understanding of the scheme of the legislation as discussed at para [57] above.

[65] But what is part (b) of subsec 58A(7) – which lists “the interests of the estate which comprises the land to which the application relates” as one of the factors the Commission must have regard to – for, if not to take account of detriment to the landowner’s interests? In our view it is by no means rendered redundant by our approach. It covers any impact, good or bad, the application might have on the estate’s interests. Even where the overall effect on the estate’s interests is beneficial, not detrimental, there may be negative effects which should be borne in mind by the Commission as part of the overall balancing exercise and with a view as to whether ameliorative conditions should be attached to their approval. Its existence does not mean that that is the only point in a sec 50B exercise at which detriment can be considered by the Commission.

[66] For the foregoing reasons we are of the opinion that the Commission did not err in treating the matter of detriment to the landowners’ interests as a preliminary point of validity on which they were entitled to rule and, having concluded that detriment as aforesaid had been established, in refusing the application.

Ground 2 – sec 52A(3)(b) – that the Commission made a finding as to a fact material to their decision but did not have sufficient evidence on which to base that finding

[67] The finding made by the Commission was that “On the basis of the objection received, the Commission has considered and accepts, as a matter of fact, that the proposed use would be detrimental to the interests of the owner or landlord in terms of section 50B(2) of the 1993 Act” (decision letters of 14 September 2018 and, for Aignish, 24 January 2019). Flesh is put on the bones of that finding further on in said decision letters where this is said:

“The Commission accepts that implementation of the section 50B proposed use would make more difficult, and could prevent, the implementation of the landlord’s own preferred larger Stornoway Wind Farm development, in which the landlord has invested time and resources. The Commission further accepts that such an impediment to the implementation of the larger Stornoway Wind Farm development would be detrimental to the interests of the landlord.”

[68] By the time the Commission made their decisions in these appeals years of preparation and planning had gone into the Stornoway Wind Farm project. Mr Gill explained that the lease of the site had been entered into in 2010, planning consent had been obtained in 2012 and the sec 19A application had been lodged with this Court in 2017. Despite all of that, there remains significant uncertainty as to whether it will ever go ahead. The sec 19A application has still to be heard on its merits, a Contract for Difference has to be awarded and the interconnector which will carry electricity to the mainland has to be built. What is certain, however, is that both it and the several community schemes proposed by the appellants cannot go ahead: most, if not all, of the turbine sites are identical.

[69] Although there are unanswered questions as to us how the Trust could be compelled to do whatever was necessary to allow the sec 50B schemes to go ahead if they were approved (given that the Commission’s role is confined to deciding whether to approve the proposed use of the common grazings and, as already noted, there are no powers of enforcement), the fact remains that if the sec 50B schemes go ahead the Stornoway Wind Farm, as presently planned, cannot. So the sec 50B schemes are not just potentially detrimental to the Trust’s plans, they are potentially fatal.

[70] The appellants say that because of all of the current uncertainties the Trust does not have a present legal interest to defend. They will, say the appellants, only acquire such an interest once all the consents and infrastructure required are in place. We do not accept that argument. The Trust has an interest to defend and protect the progress and investment already made from further challenges to the viability of the Stornoway Wind Farm. Certainly any of these other uncertainties could kill off the Stornoway Wind Farm but so too would the use proposed in the sec 50B applications, at least so far as a wind farm on the presently envisaged scale is concerned. In that situation approval of that use would undoubtedly constitute what Mr Gill called “an immediate, present detriment” to the landowners’ interests.

[71] It is of course the strong conviction of all four sets of appellants that their schemes offer a better alternative to the Stornoway Wind Farm. They seek to follow the example and build on the proven success of the wholly community owned three turbine Beinn Ghrideag Wind Farm which is already situated on the Sandwick North Street Common Grazings. However it was not the function of the Commission to decide as between these approaches. The only question for them was whether what was proposed constituted a detriment to some legitimate interest of the Trust as landowners. On the evidence before them (be it noted that at the hearing of the appeal Mr Findlay made clear that it was no longer being argued that the Commission were required to hold a hearing and that it was accepted that a decision could be reached on the basis of the written submissions of parties) they were, in our view, undoubtedly entitled to come to the conclusion that the schemes were detrimental to the landowners’ interests as matters stood at that point in time. This ground of appeal is therefore repelled but, before we leave it, it is perhaps fair to make the point that the Stornoway Trust is itself a community landlord (Scotland’s oldest and one of its largest) and that it has no interests of its own, independent of the communities it serves.

Ground 3 – sec 52A(3)(d) – that the Commission took into account certain irrelevant or immaterial considerations

[72] The considerations which are said to be irrelevant or immaterial under this head are the Trust’s objections. The sense in which they are said to be irrelevant has nothing to do with their substance but with the fact that they were lodged so late that they ought not to have been allowed to be received without good reason. So this ground of appeal is, as Mr Gill identified, really an attack on the Commission’s exercise of their discretion to receive late objections under subsec (5A) of sec 58A which allows late objections “if [the Commission] consider there is a good reason why the objection is late”.

[73] A person making an application to the Commission for their approval or consent must (a) give public notification of it and (b), if that person is not the landlord, give written notification of it to the landlord; sec 58A(3).

[74] In this case the applications to the Commission were made on 7 September 2016 (Melbost & Branahuie), 20 September 2016 (Sandwick North Street), 7 November 2016 (Aignish) and 25 April 2017 (Sandwick East Street). Section 58A(2) stipulates that an application for the Commission’s approval or consent must be in such form as the Commission shall specify but at the time of these applications the Commission had no prescribed form for them. So one had to be devised but when it was sent to the Grazings Committees they did not find it suitable for conveying all of the information they wanted to convey so they asked the Commission to proceed on the basis of their original applications, which were in letter form with various documentary appendices.

[75] This aspect of matters was still the subject of correspondence almost a year after the first of the applications had been submitted when, on 10 August 2017, the Commission wrote to the various Grazings Clerks on the matter. That letter (production 13A is an example) also raised the question of whether the applications had been advertised in terms of sec 58A(3). That then became the subject of further correspondence and the cause of further delay before the Commission accepted, on 8 November 2017, that “the minimum advertising requirements” of sec 58A(3) had been met by three of the committees, the exception being Aignish whose application had to be advertised (or re-advertised) in the Stornoway Gazette of 23 August 2018. The reference to “minimum” advertising requirements is a reference to the fact that all the advertisements contained was the bald fact that an application for the purposes of developing a community turbine scheme on the common grazings had been lodged with the Commission under sec 50B, with no mention being made of a right to lodge objections. This is all sec 58A(3) requires but it falls short of the Commission’s preferred style of advertisement which informs the reader of the right to object, to whom objections should be sent and within what time limit.

[76] Although contemporaneous advertisement of their applications had thus been made by three of the committees and although the Trust came to accept that in at least one case (Sandwick North Street) it had received written intimation of the lodging of the application on 21 September 2016, objections from the Trust had not been received by the Commission over a year later.

[77] The explanation given for this delay is that there was uncertainty shared by the Commission and the Trust as to whether valid applications (in terms of satisfying the requirements as to advertisement) had been received and that the Commission led the Trust to believe that the 28 days period for objections had not started running.

[78] That state of uncertainty was brought to an end so far as the advertising of all of the applications except Aignish was concerned when the Commission wrote to the Trust on 8 November 2017 (production 21) saying, in relation to each of these applications,

“The Commission has reviewed the information they have provided and has accepted that the advertising requirements as set out at section 58A(3) of the Crofters (Scotland) Act 1993 have been met in respect of this application. The Commission is therefore now ready to assess the above application”.

[79] Doubts about intimation to the Trust persisted, however, and on 28 November 2017 their agents wrote to the Commission (production 24) saying that they had no record of having received notice of the applications being submitted and asking that their clients “now be afforded the statutory 28 day period to make representations”. That led to further enquiries on the part of the Commission which resulted in an admission from the Trust that they had at least received intimation of the Sandwick North Street application. That admission is contained in a letter from the Trust’s agents to the Commission dated 8 January 2018 (production 25). That letter, which related to the Sandwick North Street application but also represents the Trust’s position in relation to the other schemes, also said this:

“The Trust was aware of the intended submission by the Applicants and was in regular correspondence with the Crofting Commission in relation to the anticipated application. The principal contact within the Commission was [a named individual]. [The named individual] indicated to the Trust on more than one occasion that a valid application had not been received but that upon its receipt the Trust would be notified. No such notification was received.”

It went on to demand that the Trust now be allowed to lodge objections, a request which was granted by letter from the Commission to the Trust’s agents dated 12 March 2018 (production 29) which said:

“We acknowledge that our letter of 8 November 2017 was the first correspondence which you received from the Commission which confirmed we were in receipt of a valid application. In the circumstances the Commission agree to afford the landlord the opportunity to submit an objection to the section 50B application should they wish to do so.”

The Trust’s objections were received by the Commission on 3 April 2018.

[80] On any view of things this sequence of events, punctuated, as it was, by such lengthy delays, was highly unsatisfactory. It justifies the mounting exasperation and criticism which is apparent in letters sent from the various committee Clerks to the Commission as time went on, of which productions 27 and 33 are examples. The fact is that the committees had done all that was required of them, and done it timeously, but both the Commission and Trust seemed to spend a year or more in a fog of uncertainty as to what advertising and intimation of the applications had taken place. However, unsatisfactory as all of that is, the question for us is whether the Commission had something which they could reasonably consider to be a good reason as to why the objections were late.

[81] That reason was that because of the uncertainty as to whether advertisement and intimation had taken place, the Commission themselves had led the Trust to understand that they need not respond to the applications until all doubts about their validity had been removed (see the letter of 8 January 2018 referred to above). Although it might be thought that, on a matter of such importance to them, it would have been prudent of the Trust to lodge objections as soon as possible, we do not see how the Commission could very well refuse to allow the objections late when they had given the Trust what amounted to an assurance that they would be received. They ought not, of course, have fettered themselves in that way because, in the exercise of their discretion under sec 58A(5A), they required also to consider the interests of the appellants and where the balance of the interests of justice lay.

[82] In that regard, it will always be prejudicial to the side in whose favour a statutory time limit for objections operates if their opponents are given a second bite at the cherry. However, the Trust have gained nothing more in the way of advantage in this case. It is not said that circumstances changed during the year-long delay in such a way as gave additional weight to their objections or anything of that kind. Nor is it said that the delay weakened the applicants’ position in any way. The prejudice to them is in the fact that their opponents were given a second chance to object and in the inconvenience caused by delay. Although their thinking on this is not spelt out in any of the correspondence we have seen, we can well understand that the importance of the issues in this case might well be regarded as outweighing prejudice of that sort. Accordingly it cannot be said that the Commission exercised their discretion under subsec 85A (5A) in an unreasonable fashion. The result is that the Trust’s objections were competently before the Commission and the Commission were entitled to take them into account. As has already been said, given their substance, these objections were neither irrelevant nor immaterial. This ground of appeal therefore fails.

Ground 4 – sec 58A(3)(e) – that the Commission failed to take into account certain relevant or material considerations

[83] The relevant or material considerations which the Commission are said to have failed to take into account are (a) the factors listed in subsec (7) of sec 58A, (b) the benefits to the landowners of the sec 50B schemes and (c) the possibility of attaching conditions to their approval which would mitigate or eliminate detriment to the landowners.

[84] With regard to (a), the Commission took the view that it could not carry out the sec 58A(7) exercise because it was not dealing with a valid application. We have already held that they were entitled to examine the question of validity and to rule on it as a preliminary matter before going further. We have also held that they had sufficient evidence for the view they formed. That view being that the applications were invalid because they involved a use of land detrimental to the owners’ interests, it follows that they were entitled, indeed obliged, to refuse the applications without further procedure. They did not, therefore, have to carry out the subsec (7) balancing exercise.

[85] With regard to (b), as we have already said, the Commission were not required to carry out a comparison of the two sets of schemes. Nor was it for the Commission to decide what was in the landowners’ best interests: that was for Stornoway Trust themselves. As long as the Trust were able to demonstrate to the Commission that the sec 50B schemes involved detriment to their lawful interests that was all that was required to justify the Commission in refusing the applications as invalid.

[86] With regard to (c), although it is true that the Commission appear not to have considered this possibility, two points fall to be made. First, given that the two schemes cannot co-exist, it is difficult to see how conditions could be attached to sec 50B approvals which would mitigate their effect on the Trust’s interests. Secondly, as was pointed out by Mr Gill, even an alleviated detriment is still a detriment and, therefore, falls foul of sec 50B(1). Accordingly any failure by the Commission in this regard does not undermine the validity of their decisions.

Ground 5 – sec 52A(3)(f) – that the Commission exercise their discretion in an unreasonable manner

[87] In our opinion the Commission’s decisions on these applications were not the result of the exercise of discretion. What they did, as their decision letters make clear, was find, as a matter of fact, that the proposed use of the land would be detrimental to the interests of the Trust as landowners. That rendered the applications invalid in terms of sec 50B(2)(b). That being so, they fell to be refused. This ground of appeal therefore fails.

Aignish

[88] The Aignish appeal is different principally because in that case the Commission upheld two of the landowners’ complaints of detriment. However, since one of them is the same as the one upheld in the other appeals and discussed above, the fact that the Commission sustained another ground which they had not sustained in the other appeals is neither here nor there.

[89] Aignish also had an additional ground of appeal based on the new planning application which would, if implemented, substantially mitigate or perhaps eliminate the detriment complained of. However, Mr Gill explained that this new application was submitted to the local authority only in May of this year, after the Commission’s decision on the Aignish application, so the decision is not affected by the possible changes. This ground of appeal (which, as we have already noted, Mr Findlay did not really press) therefore falls to be refused. If the Stornoway Wind Farm does not go ahead or if it goes ahead on the basis of amended plans which allow it and the Aignish proposal to co-exist the matter can be revisited by the parties.

Decision

[90] None of the grounds of appeal having been sustained the appeals are refused.

Expenses

[91] Following our usual practice, we have allowed 21 days for the lodging of motions and submissions on expenses.