The scope of 'interested parties' who can object to a proposed development scheme under the Crofters (Scotland) Act 1993 has recently been considered by the Scottish Land Court (SLC).  We explore the implications of the SLC decision for developers and crofting landlords.

A similar case (Coigach Wind Power Ltd v Achiltibuie Common Grazings Shareholders) provided guidance on objections to development schemes. (See our August 2016 Briefing).  The 1993 Act provides that a written objection to an application to the SLC for approval of a development scheme may be submitted by 'the [Crofting] Commission or any other interested party'. In Coigach, which related to a development scheme application on an area of common grazing, the SLC found that interested parties are 'member[s] of the crofting community in the area affected by the development'.

Interested parties
The SLC relied on the Coigach definition of 'interested party' in their consideration of the issues in the recent case of Viking Energy Wind Farm v Crofters having rights in the Common Grazings of the Townships of Sandwick, Sweening and Laxo and other Common Grazings, to provide further guidance on objections to development schemes. The full facts of the case and the actions by the proposed objectors can be found here

Opposition to windfarm development proposals
In Viking, various parties made written submissions to the SLC opposing Viking’s application to use croft land on the mainland of Shetland for a windfarm development. Viking argued that these parties did fall within the Coigach definition. The parties who had raised objections to the development were:

  • three individuals who were not crofters, but lived near the proposed development;
  • Sustainable Shetland (an organisation where significant number of members are crofters); and
  • a crofter (Mr Anderson) who also operated a charter boat “Simmer Dim Charters” for sea fishing and sightseeing on the west of Shetland and which helps with the sustainability of the local landscape and environment.

The SLC had to assess whether these objectors were indeed interested parties with a right to make written objections.

Crofting interests required
Neither the three individuals, nor Sustainable Shetland, were found to be an 'interested party' as defined in Coigach. The three individuals admitted themselves that they are not crofters, and an organisation such as Sustainable Shetland cannot be a member of crofting community, therefore neither meet the Coigach test of being a member of the crofting community. However Sustainable Shetland were given leave to arrange for representation on behalf of their individual crofter members (who would be members of the crofting community affected by the development) at a future hearing on the facts of the case.

Mr Anderson did have a right to have his objections heard in his capacity as a member of crofting community affected by the development. However, his boat charter business was not considered to be sufficiently related to his crofting interest to bring it within the ambit of interest covered by the 1993 Act. Consequently, Mr Anderson would not be permitted to give evidence of any effect the development might have on Mr Anderson’s boat charter business during the forthcoming hearing. 

The decision confirms that the SLC will only consider submissions brought by objectors who are able to prove that they fall within the definition of 'interested party' with crofting interests. If an organisation seeks to act on behalf of individual crofters (who have a locus to object as 'interested party'), confirmation needs to be provided that the individuals as crofters wish to be represented by a named person within that organisation.

The guidance on who is considered to be an interested party is helpful for landowners and developers wishing to undertake development, providing more certainty on the criteria that need to be met by objectors if their representations are to be considered.  It would be prudent to include, insofar as possible, the crofting community within any decision making, to limit the number of potential objections. However, it is clear that the Court will only consider crofting interests (as opposed to other rural business interests) as relevant objections.

If you have any queries about crofting, please contact Elaine Brailsford in our Rural Litigation Team, Emma De Sailly in our Rural Team or your usual Shepherd and Wedderburn contact.

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