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The new dance called "Electricity"

1 January 04

The Crofting Acts need to be simplified if landlords and tenants are to benefit from windfarming payouts

by Robin Priestley

The aftermath of the Jacobite Rebellion, the Clearances, the “Dance called America”, the Land War, depopulation. Those who live in Scotland’s west, north-west and north may feel their homeland has had more than its fair share of bad luck. And with the benefits of the North Sea oil boom having largely accrued to north-east Scotland, Orkney and Shetland, those in the Western Isles must sometimes feel their chance may never come.

Now there is another “boom”, as a major increase in electricity generated from renewable sources becomes both a national policy commitment and a deliverable economic benefit. Hopes have been raised in Stornoway and Lochmaddy. And how could they not be, given the wind and wave resources available at the edge of the Atlantic? Even Energy Ministers have supported the Western Isles as a future renewable energy “centre of excellence” (though Orcadians and Shetlanders may beg to differ).

But farming the wind and waves is not as easy as it sounds. An isolated location and low population mean most of the Highlands and Islands has a National Grid with little extra capacity. An interconnector cable linking the Western Isles to the Grid through the Irish Sea has now been declared unfeasible. If large power generation projects are to be built where Grid capacity is currently low, new power lines across some of Scotland’s most sensitive and picturesque landscapes may be required.

It is ironic that generations of struggle to preserve the traditional crofting way of life have led to the Crofting Acts, yet the protections they give crofters are likely, in the absence of major reform, to prevent many of them from benefiting from the current renewables “boom”. As a new Crofting Act is intended for the current Scottish parliamentary session, there is a clear opportunity to legislate now before valuable opportunities are lost.

The legislative failings of the Crofters (Scotland) Act 1993 (so far as projects such as onshore windfarms are concerned) are subtle but complicated. First, the fact that there are crofters at all adds further complexity to already complicated project negotiations between developers, project funders, landowners, planning authorities, statutory consultees, electricity suppliers and the National Grid operators. Complexity means extra time and expense plus increased risk, and banks in particular dislike risk.

Secondly it is unclear whether crofters can contract out of many of their own protections so as to bind successors, even with the Land Court’s blessing. This is a problem when a windfarm site will be leased for 25 or even 50 years and the developer/tenant must have each successor landlord bound to honour lease commitments. Reaching unanimous agreement may itself be difficult where many crofters are involved, e.g. where grazings are shared widely throughout a community. Vacant crofts and absentee crofters will make things even harder. And this is still far more complicated and expensive to a developer than land which is not crofting land at all.

Of course it is possible for a landlord to resume (i.e. remove from crofting tenure completely) a limited amount of land, but the Land Court has no power to order that it be returned to crofting tenure afterwards. Moreover, compensation is half the development value of the land resumed and the Land Court may only order this as a lump sum payable on resumption taking effect. While sensible enough when resuming a house site, payment of such sums for a multi-million pound project site when no power (and income) has yet been generated would be punitive for the developer.

It has been suggested that private legislation could solve many of the legal problems associated with windfarm and other capital projects in crofting areas, and certainly Scotland’s first offshore windfarm project will proceed under its own Scottish parliamentary powers. But private legislation is slow and expensive, with an uncertain outcome at the end. The best long term solution therefore seems to be a Crofting Reform Act. Such reform could permit crofters to enter agreements (binding successors but not permanently removing land from crofting tenure) to restrict crofting activities as required during the project life cycle. It could also permit compensation payments to be paid annually (allowing these to be made from electricity sales revenues rather than from project finance).

Finally, could crofters use the Crofting Communities’ right to buy in Part 3 of the Land Reform (Scotland) Act 2003? Perhaps this is not quite what the Parliament intended this right for, but who is to say the Scottish Ministers would not approve such a “sustainable development” proposal in certain cases? Either way, when the present “Dance called Electricity” comes to an end, will it be crofters who are still celebrating? Maybe only the wind and the waves can tell.

Robin Priestley, Planning & Environment Group/ Rural Property, Anderson Strathern WS