Detriment as a Prerequisite in Crofting Commission Approvals: Insight from [2020] ScotCS CSIH_49

Introduction

The case presented before the Scottish Court of Session ([2020] ScotCS CSIH_49) involves an appeal by four crofting townships located near Stornoway. The appellants challenged the Crofting Commission's refusal to approve their applications for the installation of community-owned wind farms on their respective common grazings. The core contention centers around whether these proposals would be detrimental to the interests of landowners, as stipulated under section 50B(2) of the Crofters (Scotland) Act 1993.

The parties involved include the crofters (appellants), the Crofting Commission (respondents), and The Stornoway Trust (interested parties). The appellants sought approval for wind farm installations, which the respondents deemed invalid due to potential detriments to landowner interests. This judgment delves into the statutory interpretation of sections 50B and 58A of the Crofters (Scotland) Act 1993, examining the balance between crofter rights and landowner protections.

Summary of the Judgment

The Scottish Court of Session upheld the Crofting Commission's decision to reject the crofters' applications for community-owned wind farms. The court affirmed that under section 50B(2) of the Crofters (Scotland) Act 1993, any proposed use of common grazing land by crofters must not be detrimental to the landowner's interests. The respondents determined that the wind farm proposals would hinder the interested parties' (landowners) investment in a larger wind farm scheme, thereby constituting detriment.

The appellants argued that the formal validity of their applications should be assessed solely under section 58A, which involves a broader balancing of interests, rather than being precluded by section 50B(2). Additionally, they contested the respondents' allowance of late objections from the landowners. The court, however, found that the respondents were within their statutory authority to evaluate detriment as a threshold condition, thereby rendering the proposals invalid before considering other factors under section 58A.

Analysis

Precedents Cited

The judgment references several key cases and statutory provisions to support its reasoning:

Garvie's Trustees v Still (1972 SLT 29): Emphasized that the Crofting Commission must act within the bounds of statutory authority.
McCreight v West Lothian Council (2009 SC 258): Reinforced the importance of statutory interpretation in administrative decisions.
R(V) v Asylum and Immigration Tribunal [2009] EWHC 1902 (Admin): Highlighted the principles governing judicial review of administrative actions.
Chief Constable of Nottinghamshire Police v Nottingham Magistrates' Court [2009] EWHC 3182 (Admin): Discussed the limits of appellate interference in quasi-judicial decisions.
Ross v Graesser (1962 SC 66): Clarified the nature of crofting rights as primarily rights of use rather than property rights.
Crofters Commission v Arran (1997 SLT Land Ct 22): Affirmed that rights of common grazing are servitudes rather than property rights.

These precedents collectively support the court's stance on statutory interpretation, the limits of administrative discretion, and the protected interests of landowners under the Crofters (Scotland) Act.

Legal Reasoning

The court's legal reasoning hinged on a precise interpretation of the relevant statutory provisions. Section 50B(2) of the Crofters (Scotland) Act 1993 was pivotal, stating that any proposed use of common grazing land must not be detrimental to the landowner's interests. The court delineated the roles of sections 50B and 58A:

Section 50B(2): Acts as a threshold condition, precluding the approval of any proposal that would harm the landowner's interests.
Section 58A: Governs the broader approval process, involving a balance of various interests including those of the crofting community and the public.

The respondents (Crofting Commission) first assessed whether the proposals were detrimental under section 50B(2). Finding that the crofters' wind farm proposals could obstruct the landowner's existing investment in a larger wind farm scheme, the respondents deemed the applications invalid. The court held that this assessment was both appropriate and within the respondents' statutory authority. Furthermore, the allowance of late objections from the landowners was justified, as the respondents had valid reasons tied to procedural uncertainties.

The appellants' arguments that detriment should be assessed within the broader balancing exercise of section 58A were rejected. The court emphasized that section 50B(2) operates independently as a gatekeeper to ensure landowner interests are not compromised before any further consideration.

Impact

The judgment has significant implications for future crofting community applications concerning the use of common grazing land. Key impacts include:

Clarification of Statutory Hierarchy: Reinforces that specific statutory provisions (like section 50B(2)) take precedence over more general ones (like section 58A) when addressing particular issues, such as detriment to landowner interests.
Strengthening Landowner Protections: Affirms the legal protections afforded to landowners, ensuring that their economic interests are safeguarded against potentially conflicting crofter proposals.
Guidance for Administrative Bodies: Provides clearer guidelines for bodies like the Crofting Commission on how to assess and prioritize applications, particularly concerning detriment evaluations.
Influence on Community-Owned Projects: May influence the viability and structuring of future community-owned renewable energy projects on croft land, emphasizing the need to align with landowner interests.

Overall, the decision underscores the delicate balance between promoting sustainable development within crofting communities and protecting the vested interests of landowners.

Complex Concepts Simplified

Crofters

Crofters are tenant farmers who hold small-scale agricultural leases known as crofts. They possess specific rights under Scottish law to use common grazing lands for livestock, peat cutting, and other customary activities.

Common Grazings

Common grazings refer to pasture lands collectively used by crofters for grazing livestock. These areas are not owned individually but are managed by grazings committees established under the Crofters (Scotland) Act.

Section 50B(2) of the Crofters (Scotland) Act 1993

This provision allows crofters to propose alternative uses for common grazing land beyond traditional activities like grazing or peat cutting. However, any proposed use must not be detrimental to the landowner's interests. If detriment is identified, the application for alternative use is invalidated.

Section 58A of the Crofters (Scotland) Act 1993

Section 58A outlines the broader approval process for various applications related to crofting land. It involves a balancing exercise where multiple factors, including the interests of the estate, the crofting community, and the public, are considered to determine the approval or refusal of proposals.

Detriment

In this context, detriment refers to any action or proposal that negatively impacts the landowner's interests in their property. This can include financial losses, impediments to larger projects, or increased liabilities.

Conclusion

The [2020] ScotCS CSIH_49 judgment serves as a pivotal reference point in the interpretation and application of the Crofters (Scotland) Act 1993. By establishing that detriment to landowner interests is a preliminary and decisive factor in the approval of crofters' proposals under section 50B(2), the court has clarified the boundaries within which crofters can seek to diversify land use. This ensures that while crofting communities have avenues to develop their land sustainably, such developments do not undermine the legitimate economic and ownership interests of landowners.

For practitioners and stakeholders in the crofting sector, this judgment underscores the necessity of aligning community projects with landowner interests from the inception stage. It also highlights the role of administrative bodies in judiciously applying statutory provisions to maintain the delicate balance between community empowerment and property rights protection.