Decision of the Scottish Land Court

Stornoway Wind Farm Limited (Applicants) v Crofters having rights in Stornoway Wind Farm Site (Respondents)

Case reference SLC 59/17
before
Lord Minginish, Chairman, and Mr Tom Campbell
4 December 2017

[1] This is an application for consent to a scheme of development under sec 19A of the Crofters (Scotland) Act 1993 (“the Act”). It is brought by Stornoway Wind Farm Ltd (“the applicants”), a joint venture between two major commercial companies with extensive involvement in renewable energy, AMEC Project Investments Ltd and EDF Energy Renewables Holdings Ltd, with the consent of the land owners, the Stornoway Trust (“the Trust”), and seeks consent to a scheme of development (“the scheme”) comprising a windfarm on an area extending over nine common grazings in the vicinity of Stornoway. When it was intimated by way of advertisement in The Stornoway Gazette it attracted 231 responses, a number of whom have now moved to have it sisted pending the outcome of applications made by four of the nine common grazings committees for Crofting Commission (“the Commission”) approval under sec 50B(6) of the Act for the development of community owned wind farms on their own grazings. Those four grazings committees are those for (i) Aignish, (ii) Melbost & Branahuie, (iii) Sandwick North Street and (iv) Sandwick & Sandwick East Street Common Grazings. The motion to sist is opposed by the applicants and the Trust and both sides have agreed that we may dispose of it on the basis of written submissions and without a hearing.

[2] Leaving aside, for the moment, the law which should govern decisions on motions to sist, the applicants and landlords argue (i) that no good reason for a sist has been given, (ii) that a sist granted just now would be for an unknown and indeterminate period, (iii) that a sist granted at this stage would be premature, given the early stage at which the sec 50B applications seem to be, (iv) that the provisions of secs 19A and 50B are not inter-related in such a way that the outcome of one would determine the outcome of the other, (v) that a sist would prejudice the applicants whereas refusing to sist would not prejudice the respondents, (vi) that the two processes, not being related as aforesaid, can continue independently of each other, (vii) that sec 19A contains sufficient protection for the crofting community affected by the Scheme, so that there is no need for a sist, (viii) that a sist would be detrimental to the interests of the shareholders who have not opposed the Scheme, and (ix) that a sist runs the risk of deadlines for requisite consents being in place set by the UK government in relation to progressing the proposed interconnector whereby power would be exported to the National Grid not being met and delivery of the interconnector therefore being jeopardised.

[3] The original submissions made in favour of a sist and the further submissions made by 22 respondents pursuant on the Court’s order of 24 October 2017 argue (i) that the sec 50B process should be given priority because it is more attractive and beneficial to grazings shareholders than the Scheme, (ii) that the Court cannot properly determine whether the applicants’ Scheme constitutes a reasonable purpose in terms of sec 19A before the four sec 50B applications have been decided, (iii) that the two proposals are mutually exclusive to the extent that one cannot be carried out in its entirety if the other proceeds, (iv) that the sec 50B applications were submitted to the Crofting Commission before the present application was submitted to this Court and that delay in the processing of those applications is the fault of the Commission, (v) that a sist would not be prejudicial to the applicants because the whole Scheme is dependent on the interconnector and the associated “Contract for Difference”, neither of which is (say these respondents) likely to be in place for many months, if ever, and (vi) that the sec 50B applications, if granted, stand a greater probability of securing a subsea grid connection than the present Scheme.

The relevant law

[4] The applicants’ agents have referred to a number of authorities for guidance as to when a sist should be granted. These are to the effect that the general principle is that an action should be litigated to a conclusion without interruption (MacPhail Sheriff Court Practice 3rd ed para 13.71), that any interruption must be in the interests of justice, the onus of demonstrating which being on the party wishing to sist (Connell v Grierson 1865 (3) M 1166 per Lord Deas at 1167; MacPhail ibid at 13.73) and that “it would be improper, against the wishes of one of [the parties], to sist merely to await the result of another action between different parties where the decision in that action would not be binding upon the court, or where it is not clear that the decision in that action would affect the result of the case” (MacPhail, ibid para 13.79). Those principles seem to us to be unobjectionable and none of the respondents who have moved for a sist has taken issue with them.

[5] Applying those principles, therefore, the question is whether the respondents who have moved for a sist have discharged the onus of showing that a sist is in the interests of justice. What the respondents want here is to have their sec 50B applications determined first. That is no doubt because they apprehend that a decision on the sec 19A application favourable to the applicants would be prejudicial to their sec 50B applications.

[6] Before proceeding further it is convenient to set out the relevant parts of those provisions.

Section 19A is, so far as relevant, in the following terms;

“19A Schemes for development

(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.

(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 quo croft).

(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.”

[7] Before setting out the terms of sec 50B it is relevant to quote the relevant parts of sec 20 in relation to the meaning of “reasonable purpose”:

“20 Resumption of croft or part of a croft by landlord

(1) 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 thereof by the landlord upon such terms and conditions as it may think fit …”

(1AA) In determining whether it is satisfied as mentioned in subsection (1) above (and, in particular, whether the reasonable purpose mentioned there relates to the public interest) the Land Court –

(a) may take into account the effect that purpose (whether alone or in conjunction with other considerations) would have on the matters mentioned in subsection (1AC) below;

(1AC) The matters mentioned in subsection (1AA)(aa) above are –

(a) the sustainability of –

(i) crofting in the locality of the croft or such other area in which crofting is carried on as appears to the Land Court to be relevant;

(ii) the crofting community in that locality or the communities in such an area;

(iii) the landscape of that locality or such an area;

(iv) the environment of that locality or such an area.

(b) the social and cultural benefits associated with crofting.”

“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 –

(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 … … and, if the vote is in favour of the proposal, of what subsection (6) of this section requires to be done.

(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.”

Section 58A of the Act sets out how the Commission is to deal with such an application:-

“58A Obtaining Commission approval or consent

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

(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 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

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

(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.”

Decision

[8] Thus secs 19A and 50B are two routes by which proposals can be put forward for the use of common grazings for purposes beyond those otherwise permitted. The former is a route whereby the land owner or, as here, someone acting with his consent, can do it, the latter permits an individual crofter with a right in the common grazings to initiate it. They involve two very different procedures conducted by two different bodies, this court and the Commission. However, although the procedures are different they both contain provisions whereby those with an interest (which would include, as of right, all the shareholders in affected common grazings in relation to a sec 19A application and the owner of the common grazings in relation to a sec 50B application, although not someone in the position of the present applicants unless they are able to persuade the Commission that they have a relevant interest separate from that of the land owner) can object to what is being proposed. Although the matters which the Court, on the one hand, and the Commission, on the other, have to consider are not identical – indeed they differ widely in some respects – they do include matters such as the public interest, the interests of the land owner and the interests of the crofting community, including, to some extent the interests of individual crofters.

[9] The respondents’ additional submissions suggest that the sec 50B route should be given priority because it comes “from the bottom up rather than being an imposition of the Committee on the shareholders” and has to survive a “more demanding democratic process than any other statutory procedure within a common grazing”. The legislation itself, however, gives no such priority and contains nothing to prevent proposals under both sections running concurrently.

[10] In terms of how a favourable result in the present application might impact upon the sec 50B applications, subsec (11) of sec 19A may be thought to be significant in that it provides that the scheme, once entered in the Register of Crofts, would be binding on, amongst others, any member of the crofting community in the area affected by the development “insofar as its terms so provide”. This is not the place to determine what exactly that phrase means but it may simply mean that the scheme is binding according to its terms. In that situation the Commission would not, we think, be able to consent to a sec 50B application in any respect in which the two developments were incompatible, which is, we are told, to some extent the case here.

[11] Although that may be so, we do not regard it as sufficient to sist the present proceedings. That is because, (a), as we have said, the legislation confers no precedence on one application over the other, (b) the granting of the sec 50B applications is not going to foreclose the result of this application, which will have to be decided on its own merits, (c) as part of that the objectors will have every opportunity to seek to persuade the Court that the four township proposals are preferable to what is proposed in the present scheme and that this application should therefore be refused, and (d) in those circumstances the applicants are entitled to have their application proceeded with without unnecessary delay. Those moving for the sist have not, therefore, persuaded us that it is in the interests of justice and their motion has therefore been refused.

Further procedure

[12] Since a sist has been refused, it is now necessary to consider further procedure. Obviously there will have to be a hearing on the application in due course. Parties may or may not wish to adjust their pleadings before having a hearing fixed and, in that regard and also with a view to the conduct of the eventual hearing, the respondents should let us know how they intend to organise themselves and be represented in the future conduct of the case. The documents lodged by them to date display a high degree of co-ordination so this is something to which some thought will already have been given but we need to know whether they are going to instruct lawyers collectively, or at all, or whether any of them intend to appear, or be represented, separately. Also we understand that the applicants wish to challenge the title and interest of some of the objectors so that too will require to be dealt with. Rather than pronounce an order at this stage ordaining everyone to lodge their individual proposals for further procedure at this stage we have thought it preferable to allow a period of time for all concerned to consider how they wish to proceed. A procedural hearing in Stornoway early in the New Year may be useful but, in the first instance, we invite parties to advise the Court of their positions in the period between now and the Christmas holidays.