Wind farm development on common grazings approved despite crofters' objections

The Scottish Land Court has approved an application to vary a scheme allowing part of the Viking Wind Farm on Shetland to be built on land subject to crofting tenure.

Wind farm scheme for development

Croft land is often an ideal location for renewable energy development. In 2018, Viking Energy Wind Farm LLP successfully obtained consent from the Scottish Land Court to develop an area of common grazing land on mainland Shetland, receiving permission to construct 103 turbines with a maximum tip height of 145 metres. This related to a scheme for development for the generation of electricity from the Viking Wind Farm, a joint venture between the Shetland Community and SSE.

Shortly after the Land Court’s order in 2018, Viking sought to increase the maximum tip height of the turbines, their rotor diameter and the height of seven temporary anemometry masts. This variation required an amended scheme for development and fresh consent from the Land Court.

As with the previous application, the local crofting community objected to the varied scheme on a number of grounds, including the potentially greater environmental impact and the visual disturbance the larger turbines would create. There were also concerns about the disruption to the peatland on which much of the wind farm would be built.

Schemes for development and the tests to be satisfied

A scheme for development can be used for development projects on croft land, or common grazing, under the provisions of Section 19A of the Crofters (Scotland) Act 1993, and is often used for larger-scale renewable energy projects. An application is made to the Land Court for consent to develop the land in a scheme specific to that land. Unlike resumption, a Section 19A scheme for development does not remove the land from crofting control, but rather suspends crofters’ rights in favour of the developer.

The Land Court has to be satisfied on certain matters before it can grant approval to a scheme for development. These are:

• that the development is for a reasonable purpose;
• that to carry it out would not be unfair;
• 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 that development (including, in relation to the croft land of each such member, recompense at least equivalent to the recompense the member might be expected to have obtained had that croft land been resumed); and
• that, were the development carried out, the community would be likely to benefit financially; and such benefit would be at least commensurate with any financial benefit the members of that community might obtain on the development proceeding other than by virtue of the section.

The Land Court was satisfied on these matters when it consented to the first scheme for development submitted in 2018. However, presented with the varied scheme, it subsequently reviewed these matters to determine whether anything had changed and whether the legislative tests continued to be met.

Success for Viking Energy

The application [1] was assessed on the basis of written submissions. The Land Court took into account a report produced by Viking Energy that concluded that the increased tip heights of the turbines would lead to an increase in both the minimum and base rent to the affected crofters. The compensation would be “greater than the amount which the crofter concerned would receive if those areas were to be resumed for the purposes of the Development”. The Land Court was satisfied that the legal tests had again been met and therefore consented to the new scheme.

The Land Court also made it clear that many of the crofters’ concerns were, on the whole, not matters under its jurisdiction, and that issues such as the reasonableness or otherwise of the heightened turbine tips is a planning matter. There had otherwise been no changes since 2018 to the wind farm plan that would contravene the test in Section 19A. The Land Court affirmed that the revised scheme was still for a reasonable purpose, that it was not unfair, that the crofters affected by it would be provided with fair recompense, and that the crofters would benefit more from the farm being built than not.