Schemes for Development

Landlords who wish to use croft land for a development purpose have two options available to them. The croft land may be common grazing land over which crofters have grazing rights, or in-bye croft land which is subject to a croft tenancy. These two options are:-

  • to resume the land from crofting tenure by making a Resumption Application to the Scottish Land Court
  • to apply to the Scottish Land Court for consent to a Scheme for Development to permit the development to take place on the croft land

In recent years the main developments which have taken place on croft land have been renewable energy developments, such as wind farms or hydro schemes. Usually landlords have resumed the land on which any such development is to take place even though, since 2007, it has been possible for the landlord to make a Scheme for Development application.

To date very few Scheme for Development applications have been made to the Scottish Land Court, despite the fact that renewable energy developments on croft land have become increasingly common within the last five years.

The recent case of Pentland Road Windfarm Limited v Knock & Swordale Common Grazings & Others (2012) has provided some useful practical guidance for any landlord considering making a Scheme for Development application to the Land Court. This application concerns a wind farm development on four separate common grazings (involving over 600 grazing shareholders) on the Pentland Road grazings. These grazings lie to the west of Stornoway on the Isle of Lewis.

The Court pointed out that this is one of the first Scheme for Development applications that it has been asked to deal with. The Court makes it clear in their determination of the application that applicants must:-

  • make it clear what material within the application comprises the “scheme” in terms of section 19A of the Crofters (Scotland) Act 1993 (“the Act”). This is the section of the Act which deals with Schemes for Development.
  • set out clearly the particular terms of the scheme and how it applies to and affects the following persons:-
  1. the landlord
  2. members of the crofting community within that area
  3. any croft tenant/ holder of grazing rights
  4. successors of the above
  • explain precisely in terms of the scheme the nature of the rights the affected persons will be giving up

The Court indicates that it is not enough for the applicant simply to annex any Option Agreement and draft Lease to the application. The applicant must set out clearly how the crofters’ rights will be affected in terms of the Act. A clearly drafted application setting out the above will enable the Court to assess whether the proposed Scheme for Development is for a “reasonable purpose” and also whether the affected crofters have received equivalent recompense/ payments had the proposed development site been the subject of a resumption application. The Court must be satisfied that the financial benefit to the crofting community under a Scheme for Development would be no less favourable than the financial benefits available to crofters under a traditional resumption or temporary resumption application.

A clearly set out application will also assist the Court in making an appropriate direction to the Crofting Commission to enter a copy of the scheme in the Register of Crofts.

 

The information in this publication is based on our current understanding of the law. It has been produced for information purposes only. Professional advice should always be sought before taking any action.

Macleod & MacCallum cannot take any responsibility for loss incurred through acting or failing to act on the basis of anything contained in this publication.

July 18, 2014