What is a scheme for development?
Schemes for development have become the most common method of dealing with crofting tenure to allow a renewable energy project to proceed.
Historically, schemes for development were only used for large-scale projects but we are now seeing them utilised for smaller projects as well.
An application is made to the Scottish Land Court for consent for a renewable energy project proceeding in accordance with a scheme for development under Section 19A of the Crofters (Scotland) Act 1993 (“the 1993 Act”).
The scheme is appended to the application to the Land Court and the scheme sets out how the land will be developed and the compensation that will be paid. If approved, the project can proceed in accordance with the scheme.
Who can apply for a scheme for development?
Unlike resumption[A2] [A3] , the landowner or the developer acting with the consent of the landowner can make the application – which is actually an “intimation” to the Land Court if you have the consent of those who have rights in the affected land.
Whose rights are affected?
Unlike resumption, the rights of the crofters in relation to the land are suspended for the lifetime of the development but there is no change to the status of the land as a croft.
The land remains subject to crofting control for the duration of the development, so that when the development finishes the land reverts to its original crofting use.
The scheme is binding on the landowner, any member of the crofting community in the area affected by the development, the crofters themselves, the holder of any grazing rights and their successors.
What are the time periods in the scheme for development?
In contrast to resumption, the consent to develop in accordance with the scheme is likely to last for the length of the development rather than there being issues with extending temporary resumptions.
Who can object?
The Crofting Commission must be notified of the application. However, unlike resumption, the notification must also be made publicly, regardless of whether the crofters’ consent is in place or not. This means that interested parties who are members of the crofting community may object to the scheme being approved. This is a wider class of objector than with resumptions.
When can objections be submitted to a scheme for development?
Objections must be submitted within 28 days of public notification. The Land Court has pointed out that it would not ordinarily withhold consent to a Section 19A intimation if there are no objections to the proposal.
What is the legal test for approving a scheme for development?
To approve a scheme, the Land Court must be satisfied that:
The development is for a reasonable purpose (which includes the generation of energy);
To carry it out would not be unfair;
Fair recompense is provided to each member of the crofting community affected by the development;
The community would be likely to benefit financially, and such benefit would be at least commensurate with any financial benefit which the members of that community might obtain on the development proceedings by any other means; and
The development would be likely to bring benefits to the community at least as much as it would do if resumption took place.
Any objectors will need to show that the legal criteria are not met.
Will there be a hearing?
If there are objections, the Land Court must hear these before reaching a decision on the scheme.
Will a scheme for development be registered?
The application will not trigger first registration in the Crofting Register but the scheme for development, if approved, will be entered into the Register of Crofts.
Can amendments be made once a scheme is approved?
No. There is no provision for amendment of the scheme once the application is made. The effect of this is that substantial investigations must have taken place before the scheme can be drafted so that it includes details as to how the project will proceed.
If you have further questions:
If you have any questions or would like to discuss the topics raised in this article further, please get in touch with Stephanie Hepburn or another member of our crofting team.