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A Crofting Commission decision last week on the right of three Isle of Lewis townships to develop their own community-owned wind farms is being hailed as a major step forward for their campaign, despite the fact the commission rejected their applications.
Campaigners have pointed out that the ruling by the commission has confirmed the principle they were fighting for – that crofting communities have the power to develop wind farms on their common grazings land without the landowner’s consent.
They say the grounds on which the commission turned down their applications was not on this key question of principle but on a separate argument as to whether their wind farms would be ‘to the detriment’ to the landowner, a point which the crofters dispute because they have offered to pay the same rent as any private developer.
Rhoda Mackenzie, a township representative, said: ‘This commission decision, while disappointing in its final conclusion, is a major breakthrough for the rights of crofting communities and leaves us much further ahead than we thought we would be at this stage.
‘This is such a revolutionary use of the law that we always knew it would have to be confirmed in the land court at the end of the day but at least we now have the commission’s endorsement on all the substantive points of principle.
‘Our outstanding disagreements with the commission are on a point of fact and of procedure which we are happy to let the land court decide.’
Section 50B of the 1993 Crofting Act was passed into law in 2007 by the last Labour administration in Holyrood with the intended aim of allowing crofting communities to use their common grazings for new activities – expected to be in the areas of horticulture, recreation and growing winter feed.
Most significantly, the clause stated that the consent of landowners was not required, the only caveat being that the proposed use should not be detrimental to the landowner.
However, it was never used and was languishing forgotten about on the statute books, until the three Lewis townships decided to use it in a bid to develop community wind farms on their own common grazings.
The townships’ 50B applications were submitted to the Crofting Commission in September 2016 and the landowner responded with a six-page objection, having been given leave to make its objection a year late.
In its decision last week, the commission rejected the landlord’s objections to the principle of using 50B on the basis that there was no ‘express restriction in the uses to which the part of the common grazings can be put, other than that the use must not be detrimental to the interests of the owner’.
The Lewis townships therefore feel that the commission has opened the door for crofting communities to make use of their common grazings for an unprecedented range of economic activity where they will no longer need the consent of landowners to do so, provided it is not detrimental to their interests.
The townships are now preparing their appeal to the Scottish Land Court, to overturn the decision that their developments would be detrimental to the landowner and also on the grounds that the landowner’s objection was submitted a year late.