Wind Farm Development On Common Grazings Approved Despite Crofters' Objections

• Published date: 24 September 2020
• Subject Matter: Energy and Natural Resources, Energy Law, Renewables
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Stephanie Hepburn and Emma De Sailly

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...