Wind Turbines on Inbye Croft Land

In determining the whether a crofter is permitted to erect a wind turbine on his inbye croft land (which is not to be removed from the scope of the crofting legislation by either decrofting or resumption), we must first look to section 5 (7) of the Crofters (Scotland) Act 1993, which provides that a crofter must seek the consent of his landlord before putting the croft to a purposeful use other than agriculture, and if consent is forthcoming, any such use is subject to any conditions specified. Failing consent from the landlord within 28 days, the crofter can apply to the Commission for consent.

To consider what “purposeful use” means, we must look to Schedule 2 of the 1993 Act, which lists the Statutory Conditions of Tenure.

Condition 3 provides that the crofter shall cultivate his croft, or else put it to some other purposeful use. Cultivation includes the use of a croft for “horticulture or for any purpose of husbandry including the keeping or breeding of livestock, poultry or bees, the growing of fruit, vegetables and the like and the planting of trees and the use of land as woodlands.” The Schedule does not categorically stipulate the production of energy as a form of cultivation.

“Purposeful use” is “any planned and managed use, being a use which does not adversely affect the croft, the public interest, the interests of the landlord or the use of adjacent land”.

On the basis of a simple interpretation then, using a croft for the production of energy may well be considered to be a purposeful use, but could a wind turbine negatively affect the croft? Or the public interest? The good of the croft is a difficult concept to analyse. The Land Court, in considering “the good of the croft” in resumption applications under section 20 of the Act, have in the past held that if the compensation awarded for an area was used to benefit the remainder of the croft, the application could be said to be for the good of the croft.

In terms of the public interest, the Land Court have, again in the context of resumption applications under section 20, held that this can mean benefit to a class or community, or the provision of employment, for example a distillery or other progressive industry.
Condition 11 of Schedule 2 provides for the rights of landlords. Land ownership extends from the centre of the earth to the highest heavens, and crofting legislation has long allowed landlords the right to take minerals from the croft.

The question may therefore be posed whether the air above the croft land itself (and therefore any value attached to it), is also the landlord’s by right. Landlords are also permitted by this condition the lesser rights to take peat and water if not required for the cultivation of the croft, and it may be that wind would be construed to be in the same category as those other elements, rather than grouped together with minerals.

If a crofter purchases his croft, becoming the often-quoted landlord of a vacant croft, does he also purchase the air above it? Minerals are dealt with in section 12 (3) of the Act, which excludes them from the definition of “croft land” for the purposes of purchase, but the air above a croft is not dealt with specifically. 

To discuss further any of the issues raised in this briefing, please contact David Findlay.

The information which is given here must not be construed as legal advice. It is simply a view of the current legal provisions and does not take in to account the various factors pertaining to an individual’s case which would colour the advice given.