The race for renewables brings potential opportunities to croft land

15 June 2012

Scotland has set an ambitious target for all of its electricity needs to be met by renewables by 2020, the most ambitious in the European Union. Consent has already been given for 42 large scale schemes worth over 2GW over the past two years.
With such emphasis on the need to generate sustainable energy, there are clearly opportunities for individuals at a smaller level, not just larger energy companies. It is those who own or manage land in rural Scotland, including agricultural and croft land, who could reap the benefits of the race for renewables. The Scottish Government has a target of 500MW of the overall target coming from community and locally owned schemes.
To achieve this, they have recognised that investment in infrastructure will be required (hence the controversial Beauly-Denny upgrade) but also that the planning process should be streamlined; schemes under 50MW must be dealt with through the planning system. Along with a raft of guidelines and action plans to create the framework in order for this to happen, legislation in the form of the Crofting Reform etc  Act 2007 will assist landowners and crofters to take advantage of the plans being put forward by the Scottish Government. First Minister Alex Salmond has been quoted as stating that the renewables boom could be the biggest opportunity in 10,000 years; a remarkable statement, but one which shows the excitement around this burgeoning industry.
The interface between crofting law and renewables development is complex. Wind farming is of course inherently suited to Scotland’s remote and often wild landscape; potentially there is much available land on which to install the turbines. However, where land is crofted, particularly common grazings, the aims of the landlord and the crofter may be very different. Or indeed, they may be the same – both having a desire to share in a potential economic windfall, but how this may work in practice can depend on the relationship between the two parties. When it comes to the common grazings, both crofter and landlord can apply to the Scottish Land Court for consent to develop a renewable energy scheme on their land. But unless there is agreement between all the grazings shareholders and the landlord, a crofter, or group of crofters may have to take their plans to the Crofters Commission in order to proceed, possibly under section 50B of the 1993 Act . For a landlord, resumption is also an option, if approved by the court and if ‘reasonable purpose’ can be shown (under section 20(3)(a)(viiia) as inserted by s22(1)(c) of the 2007 Act, ‘the generation of energy’ is mentioned). Resumption takes the land out of crofting tenure.  An application can be made to the Land Court under Part 5 of the 2007 Act, titled ‘Schemes for Development’. The landlord of a proposed scheme can make the application, as again can a crofter or a developer, with the landlord’s consent.
The court will seek to ensure the development is for a reasonable purpose and that to carry it out would not be unfair to any particular member of the crofting community. Compensation should be available for land lost, and there should be a clear financial benefit to the community arising from the scheme, with those benefits being at least as great as if an alternative development was proposed. Regard should be had to a decision that may affect future generations of crofters, given the length of time involved in the lifespan of a wind turbine or farm.
But what about if the crofter wishes to initiate a development on his own land? Whether the crofter owns the land or is a tenant, there is no bar to a crofter erecting buildings and structures in furtherance of their crofting business, or any subsidiary business, provided it does not interfere substantially with the use of the croft as an agricultural subject. As stated above, the generation of wind energy may well be seen as being part of a crofters business now. The major obstacle may be objections from the neighbours or wider community, depending on the scale of the development; in reality on an average sized croft, a single turbine will be all that could be installed.  For tenants, the consent of the landlord will again be needed. It appears that unless land is owned, the landlord has the last word.
To this end, the idea for a Crofters Renewables Act has been mooted by former MP for the Western Isles Calum Macdonald, to enable crofters who do not own their land, or on common grazings, to realise the financial potential of wind energy. At the recent Crofting Law Conference, he used the example of the Point and Sandwick development on Lewis where enormous benefits for the community were going to be felt but in these circumstances, the landowner was in fact a community trust which is of course supportive of the project. It is clear that in many circumstances, the wishes of the landlord will not match with the aspirations of the crofting community, so the proposed Act would have much the same effect as the 1991 Crofters Forestry Act which Mr Macdonald initiated, allowing crofters to develop forestry schemes on their crofts, or on grazings.
The on-going legal dispute on the Pairc Estate in Lewis highlights the difficulties that can arise where a landlord seeks to profit from a wind farm development on croft grazings. The community sought to exercise their community right to buy as soon as news of a possible wind farm development was put forward by Mr Lomas; a third-party company was set up to grant a lease with Scottish and Southern Energy, known as an interposed lease. The scheme could potentially generate 250MW of energy. The Pairc Trust, set up by the community, seeks to buy the estate and the lease. The dispute is still on-going with Mr Lomas challenging a decision by the Scottish Ministers that the Trust should be able to proceed with purchase, on Human Rights grounds. 
Inksters are specialists in Crofting Law and are instructed regularly to advise on windfarm developments on croft land. Advice over the years has been provided to landlords, developers and crofters and we are currently involved in a number of active projects. If you need advice on a renewable energy project on croft land, contact Brian Inkster in Glasgow or Eilidh Ross in Inverness.

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