Crofters of Sandwickhill and other Common Grazings v Crofting Commission
| Jurisdiction | Scotland |
| Judgment Date | 19 August 2020 |
| Neutral Citation | [2020] CSIH 49 |
| Date | 19 August 2020 |
| Docket Number | No 4 |
| Court | Court of Session (Inner House) |
[2020] CSIH 49
First Division
Scottish Land Court
Crofters Commission v Arran Ltd 1997 SLT (Land Ct) 22; 1996 SLCR 103
Garvie's Trs v Still 1972 SLT 29; 1971 SLCR App 125
Halistra Common Grazings Trs v Lambert 1997 SLT (Land Ct) 7; 1996 SLCR 80
McCreight v West Lothian Council [2009] CSIH 4; 2009 SC 258; 2009 SLT 109; 2009 SCLR 359; 2009 Hous LR 21; [2009] RVR 173
MacDougall v Crofting Commission SLC/75/14; 2016 SLCR 109; 2016 GWD 31-550
MacDougall v Secretary of State for Scotland 1993 SLCR 126
Mackay v Pickles 1977 SLCR App 42
Melon v Hector Powe Ltd 1980 SC 188; [1980] IRLR 80
R (on the application of Chief Constable, Nottinghamshire Police) v Nottingham Magistrates' Court [2009] EWHC 3182; [2010] 2 All ER 342; [2011] PTSR 92; (2010) 174 JP 1; [2010] LLR 112
R (on the application of V) v Asylum and Immigration Tribunal [2009] EWHC 1902
Ross v Graesser 1962 SC 66; 1962 SLT 130
Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345
Craies, WF, Legislation: A practitioners' guide to the nature, process, effect and interpretation of legislation (11th Greenberg ed, Sweet and Maxwell, London, 2017), paras 17.1.1–17.1.11, 20.1.20
Scottish Parliament, ‘Crofting Reform etc Bill: Stage 2’ in Environment and Rural Development Committee Official Report (22 November 2006) (Online: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=1012 (1 September 2020))
Scottish Parliament, ‘Crofting Reform etc Bill: Stage 3’ in Official Report (25 January 2007) (Online: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=4702 (1 September 2020))
Walker, DM, Principles of Scottish Private Law (3rd ed, Oxford University Press, Oxford, 1982–83), III, 132
Agricultural law — Crofting — Applications by crofters for approval of proposals to develop wind farms on common grazings — Objection by landowner — Whether proposals detrimental to landowner's interests — Whether landowner's prospective commercial enterprise relevant interest — Whether decision of Crofting Commission to allow late objections lawful — Crofters (Scotland) Act 1993 (cap 44), secs 50B, 58A
The crofters having rights in the common grazings of Sandwickhill North Street, Melbost and Branahuie, Sandwick and Sandwick East Street, and Aignish, appealed to the Land Court against the decisions of the Crofting Commission to refuse to grant approval of proposals submitted under sec 50B of the Crofters (Scotland) Act 1993 (SLC/130/18, SLC/131/18, SLC/132/18 and SLC/11/19). On 17 July 2019, the Land Court (Lord Minginish and T Campbell) refused the appeal. The crofters appealed by special case to the Court of Session.
Section 50B of the Crofters (Scotland) Act 1993 (cap 44) allows a crofter who holds a right in a common grazing, to propose that a part of the common grazing be used for a purpose other than as provided for under sec 50B(1). Section 50B(2) provides, inter alia, “The use proposed must not be such as would be detrimental to– … (b) the interests of the owner.” Section 58A regulates how an application for approval or consent of the Crofting Commission is to be decided.
The pursuers were four crofting townships, having common grazings near Stornoway. The land was owned by the Stornoway Trust. Between September 2016 and April 2017, the pursuers applied to the Crofting Commission, under sec 50B of the 1993 Act, for approval of their proposals to develop community-owned wind farms on the respective common grazings. In November 2017, the Commission advised the landowner that the notification requirements for all applications had been met. The landowner was permitted to lodge late objections to the proposals. The landowner objected to the proposals on the basis that, in conjunction with a commercial developer, it had plans for the development of a much larger wind farm including on the four crofting townships. The Commission refused the pursuers' applications as invalid, on the basis that the proposals were detrimental to the interests of the landowner. In respect of one of the applications, the Commission accepted that there would be additional detriment to the landowner, in light of the accession of wind turbines and other semi-permanent equipment to the land. The pursuers appealed to the Land Court and argued that the Commission had erred in law in the manner in which it had determined the applications. The Land Court upheld the Commission's decision and refused the appeal. The pursuers appealed by special case to the Inner House.
The pursuers argued that: (1) the application fell to be decided according to factors under sec 58A of the 1993 Act; (2) the Commission had erred in considering that the landowner's speculative development amounted to an “interest” for the purposes of sec 50B(2); (3) the Commission had erred in allowing the late objections of the landowner; and (4) in any event, there had been insufficient evidence of detriment to the landowner.
Held that: (1) it was a fundamental principle, recognised by the development of legislation, that the landowner remained the person who had title to common grazing land, and, subject to a crofter's rights to graze and certain provisions of the Crofting Reform etc Act 2007 (asp 7), the landowner had the right to prevent a crofter from introducing different uses which were detrimental to his interests (para 58); (2) the Commission required to take into account those factors listed in sec 58A of the 1993 Act when dealing with applications for approval or consent, subject to the standalone provision contained in sec 50B(2), which required that any proposed use of the land should not be detrimental to the interests of the landowner and, thus, a lack of detriment to the landowner was a prerequisite to approval of an application (paras 61–63); (3) the formal validity of an application was unaffected by the existence detriment; where an objection based on detriment was received, the Committee was entitled to determine that as a preliminary issue and to refuse to approve the application, if detriment were established, and, thereafter, to proceed to consider those factors as set out in sec 58A(7) could serve no useful purpose once any finding of detriment had been made (para 64); (4) whether a proposal constituted detriment to the interests of a landowner was a matter of fact which was primarily for the Commission to determine and its decision could not be interfered with unless it could be demonstrated that it had erred in law rather than in its assessment of fact; the material before the Commission demonstrated that the landowner had a real and substantial commercial development in prospect on the land and, therefore, an “interest” for the purposes of sec 50B(2) (paras 65, 66); (5) the material before the Commission had demonstrated that, if the appellants' proposals were to be implemented, the landowner's larger scheme would be seriously jeopardised and, in those circumstances, the Commission had been entitled to conclude that such an impediment to the implementation of the larger scheme would be detrimental to the interests of the landowner and to find detriment established (paras 67–69); (6) the Commission was entitled to receive late objections in terms of sec 58A(5A) if it considered there to be good reason why an objection was late, which was a matter for its discretionary judgment, and there had been no material disadvantage on the merits suffered by the appellants, and no significant advantage gained by the landowner, as a result of the objections being allowed to be lodged late (paras 70–72); and the first and second questions in the special case answered in the negative and the third, fourth and fifth questions answered in the affirmative, and appeal refused.
Observed that the existing legislation prevented the Crofting Commission from making decisions about the development of underused croft land: if the Commission were to be afforded such a power, sec 50B(2)(b) of the 1993 Act would require to be repealed and, in that event, as the property rights of landlords would almost inevitably be interfered with, a scheme for compensating landowners for loss would be required (para 73).
Ross v Graesser 1962 SC 66 considered.
The cause called before the First Division, comprising the Lord President (Carloway), Lord Brodie and Lord Malcolm, for a hearing on the summar roll, on 2 July 2020.
At advising, on 19 August 2020, the opinion of the Court was delivered by the Lord President (Carloway)—
Opinion of the Court—
[1] This is an appeal by four crofting townships near Stornoway against determinations by the respondents that their applications for approval of the installation of community-owned wind farms on their respective common grazings were invalid because the proposals would be detrimental to the interests of the landowners, namely the interested parties, in terms of sec 50B(2)(b) of the Crofters (Scotland) Act 1993 (cap 44).
[2] The issues are defined by the questions in the special case, namely, in summary: (1) is the formal validity of an application for approval under sec 50B(6) of the 1993 Act a matter that can be determined by reference to sec 50B(2); (2) does such an application require to be determined in accordance with the provisions of sec 58A; (3) is a prospective commercial enterprise of the landowner a relevant ‘interest’ for the purposes of sec 50B(2); (4) were the respondents' decisions to allow late objections and representations of the interested parties lawful and in accordance with the 1993 Act; and (5) was there sufficient evidence that the appellants' proposed uses would be detrimental to the interests of the respondent landowner? At the heart of the substantive questions are the respective rights of the landowner of a common grazing and the crofters in relation to the use of the land. That is a...
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