Decision of the Scottish Land Court

Viking Energy Wind Farm LLP (Applicants) v Crofters having rights in the Common Grazings of the Townships of Sandwick, Sweening & Laxo and Other Common grazings (Respondents)

Case reference SLC 31/16
before
Lord Minginish, Chairman, and John A Smith
13 October 2016

[1] This is an application by Viking Energy Wind Farm LLP, made under sec 19A(1)(a) of the Crofters (Scotland) Act 1993 (“the 1993 Act”), for the consent of the Court to the use of some 8,575 ha of croft land on the mainland of Shetland for a windfarm development.

[2] The application was received by the Court on 30 March 2016. On 8 April 2016 the Court ordered public notification of the application in The Shetland Times and ordered the Crofting Commission and “any other party having a proper interest who objects to the application” to lodge written objections within 28 days. In response to that order various parties made written submissions to the Court opposing the application.

[3] On 17 June 2016 the Court issued its decision in the application by Coigach Wind Power Limited for sec 19A consent to a development on the Achiltibuie Common Grazings. In that decision the Court ruled on the scope of “interested party” for the purposes of sec 19A(7)(b) to the effect that the determining issue as to whether a person had an interest to submit written objections to the Court was whether they were members of the crofting community in the area affected by the development; Coigach Wind Power Limited v Achiltibuie Common Grazings Shareholders & Ors, SLC/109/05 decision of 17 June 2016, paragraph 25.

[4] Pursuant on that decision the agents for the applicants in the present case lodged two motions seeking to have the objections of various persons who had responded to intimation and advertisement of the application declared incompetent. These motions were made in terms of Rule 17(1) of the Rules of the Scottish Land Court 2014, the first of them on 4 August and the second on 7 September 2016. The earlier of the two motions was intimated to the affected parties, namely Ingrid Wishart, John J Morrison and Evelyn M Morrison, John Anderson, Simmer Dim Charters and Sustainable Shetland by the Court on 11 August 2016 and they were ordained to lodge any representations they wished to make in respect of the motion with the Principal Clerk within 14 days. All of those potential respondents duly lodged representations with the Court and these remain to be ruled on as part of the present decision.

[5] The second of the two motions was intimated to the objectors at whom it was directed, namely Cecilia James, P I Hurst, Claire M Hurst, Victor Drosso, Sue Wailoo, David Henderson, Caroline Henderson, Ivor Moffat, and Frances Moffat, by order of the Court dated 8 September 2016 and they were likewise ordained to lodge any representations they wished to make within 14 days. None of them has responded. It appears, therefore, that they do not seek to bring themselves within the definition of “interested party” as interpreted in Coigach and their objections fall to be dismissed as incompetent. In saying that, we infer no criticism of these individuals who, like the others, can be forgiven for thinking that “interested party” had a wider meaning than the Court felt obliged to give it in Coigach.

[6] It therefore falls to us now to deal with the responses made to the earlier of the two motions. We do so in the order in which they were received by the Court. The submission on behalf of Sustainable Shetland came from their Chair, Mr Frank Hay. The submission argues, under reference to paragraph 26 of the Coigach judgement, that “members of a crofting community include potentially all the people who live in the vicinity of the crofters, provide services etc to crofters, who add value to the community, whose properties, amenities or health might be affected by the development, and who indeed have right of access to the local croft land and common grazings”. Those are, the submission argues, the “others” referred to in paragraph 26 of the Coigach judgement as other interested parties belonging to “a potentially wider class of persons than persons with rights in or over the croft land or common grazing being developed”.

[7] Under reference to paragraph 28 of the Coigach judgement, the submission argues that there is a distinction between “the public at large”, which is an amorphous concept, and “other interested parties” within a crofting community; the point being, as we understand it, that, while the category of competent objectors was not as wide as “the public at large”, neither was it as narrow as members of a “crofting community”, as that term is defined in sec 61(1) of the 1993 Act. The submission goes on to explain that the original objections were lodged before the Coigach case was heard and decided and were prepared on the basis of the foregoing understanding of the phrase “other interested party” in subsection (7) of sec 19A. It is also pointed out that the public notice of the application contained no definition of that phrase, inviting the belief that objection was competent from any “interested party” in the non-technical sense. The submission suggests that further public notification of sec 19A applications should contain such a definition, thereby avoiding the misunderstanding that has arisen on this occasion. That is a helpful suggestion which will be considered for further action.

[8] Beyond that, the submission makes the following points (i) that the “reasonable purposes” listed in sec 20 of the 1993 Act include developments which are not specifically or exclusively for the use of crofters but likely to benefit all within the local community, and (ii) that the factors which the Court is required to take into account when granting resumption (secs 20(1AA) and (1AC)) are not confined to crofting interests but include wider interests such as the sustainability of the local landscape and environment.

[9] In further explanation of how Sustainable Shetland had come to regard themselves as within the class of competent objector, reference is made to a briefing paper issued by Messrs Wright Johnston & MacKenzie LLP on Renewable Energy and Crofting published in 2014, which, apparently, gave an expansive definition of a person “with an interest” in the context of decrofting, which the objectors had taken to be equally applicable to sec 19A.

[10] In the Sustainable Shetland submission it is said that a significant number of their membership are crofters affected by the application, several of whom had specifically requested that the organisation object on their behalf. The objections had therefore been lodged by Sustainable Shetland as agents for these crofters. It would be a denial of natural justice if the objections made on behalf of these crofter members were found to be incompetent.

[11] The submission closes with a reminder to the Court that the development proposed here impinges on several crofting communities, not just those bearing its “footprint”, and is on a scale vastly in excess of any other development which has been deemed to be a development for a reasonable purpose under the 1993 Act, or its predecessors. The objection lodged was therefore being maintained.

[12] On 26 August a short letter was received from Mr John Anderson who operates “Simmer Dim Charters”. The letter says that Mr Anderson lives in a crofting community and that he operates a charter boat which helps with the sustainability of his crofting business. He operates tourist charters and the tourists make use of local shops, accommodation etc, bringing benefit to the local crofting community. Mr Anderson says that the development will have an adverse effect on his business and his personal life and that he, therefore, maintains his objection.

[13] On the same date as we heard from Mr Anderson, submissions were received from John and Evelyn Morrison. They explained that, whereas they are not crofters, they are landowners of an estate abutting the development and had been under the sincere impression that they had a “rightful and legitimate interest” in the matter. They explained that their original submissions were lodged before the Coigach decision but argue that it would be a denial of natural justice if their objection was found to be incompetent.

[14] The foregoing responses were intimated to the applicant’s agents for comment. On 8 September they responded with a motion seeking, in effect, the grant of their earlier motion of 4 August, to the effect that the objections lodged on behalf of Ingrid Wishart, John J Morrison, Evelyn M Morrison, John Anderson, Simmer Dim Charters and Sustainable Shetland were incompetent. They maintained the applicant’s position that none of those parties came within the definition of “interested party” as interpreted by this Court for the purposes of sec 19A(7) in Coigach. In support of that position they make the following points:-

(i) Ms Wishart had candidly admitted in her submission of 10 May 2016 that she was not a crofter and that her only interest was that she lived close to the area concerned.

(ii) John Morrison and Evelyn Morrison had likewise candidly stated that they were not crofters.

(iii) The Morrisons had not argued that the Coigach decision was wrong in law, nor that their circumstances brought their interests within the scope of the Court’s interpretation of “interested party”.

(iv) In relation to Mr Anderson it was pointed out that he had made submissions in two capacities, one, on 5 May 2016, as “a crofter with a share in the common grazings affected” and the second, the letter referred to earlier herein, written in the name of Simmer Dim Charters in his capacity as owner of a charter boat. No objection was taken to Mr Anderson’s appearance in the case in the first capacity but objection was taken to his capacity as boat owner. The charter boat business operated from Aith Marina which was not under crofting tenure. There was no interest to be represented by Mr Anderson, separate from his foregoing crofting interests. Unlike the high-end holiday letting business operated by the objectors in Coigach, Mr Anderson’s charter boat business was not croft-based.

(v) In relation to the Sustainable Shetland objection, it was argued that Sustainable Shetland was a voluntary association having no legal existence distinct from its members and that it could not, therefore, be a member of a crofting community. It neither occupied a croft within a township consisting of two or more crofts nor held shares in the common grazings associated with such a township. It could not, therefore be a member of “a crofting community”.

[15] On the basis of the foregoing submissions it seems clear to us that the objectors, Ingram Wishart, John J Morrision, Evelyn M Morrison and Sustainable Shetland have not brought themselves within the meaning of “interested party” as that was interpreted by this Court in the Coigach case. Although aspects of the argument presented by Sustainable Shetland, referring to the reasonable purposes and the interests to be taken into account under sec 20 and how these go beyond purely crofting purposes and interests, suggest that it was too narrow, nothing in the submissions received persuades us that the conclusion reached by the Court on this matter in Coigach was wrong. Since an organisation such as Sustainable Shetland cannot be a member of a crofting community it cannot be an interested party as that term was defined in that case.

[16] It is clear that Mr Anderson, on the other hand, has an unchallenged right to have his objections heard in his capacity as a member of a crofting community affected by the development. We do not consider that he has any other locus to object. His boat charter business is apparently not based in a crofting community and does not appear to be sufficiently related to his crofting interests to bring it within the ambit of interests covered by sec 19A(7). His situation is no different in that regard from any other crofter who supplements his income, or indeed makes his living, from non-crofting activities. Accordingly, at the forthcoming hearing evidence of any effect of the development on his Simmer Dim business will not be permitted.

[17] That leaves the position of the crofter members of Sustainable Shetland. Although we have ruled that Sustainable Shetland per se have no locus to object we are not necessarily averse to allowing them to arrange representation on behalf of individual members who would have a locus to object as members of the crofting community affected by the development. Accordingly we have ordained members of that association who qualify as interested parties in their own right and who wish to be represented by someone from Sustainable Shetland at the forthcoming hearing to supply (a) their names, addresses and contact details; (b) information as to the crofting community of which they form part, how they form part of it and how it stands to be affected by the proposed development, and (c) confirmation that they wish to be represented by a named person within Sustainable Shetland at the forthcoming hearing. Once we have had their responses we will further consider the status of these parties and whether we are prepared to authorise their representation by whomsoever they may have nominated.