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January 16, 2013

Human rights not violated

Part 3 of the Land Reform Act – that section which relates to crofting land – is certain to come under the scrutiny of the Review Group. 10 years after the Act came into effect, the rights of crofting communities to buy their land irrespective of whether there is a willing seller, has yet to produce a single successful outcome.  The first test case has been mired in the courts, with the landowner claiming his human rights would be violated. The Court of Session has recently taken a different view.


Hebrides News, 19th Dec 2012

The forced sale of a crofting estate under the controversial Land Reform Act does not violate a landlord’s human rights, Scotland’s highest civil court has found.

The first test case of a hostile land buyout under the Scottish Land Reform Act has been heard at the Court of Session in Edinburgh nearly ten years after the legislation was introduced.  

Ironically, nobody actually lives on the 20,000 acres of boggy moorland in the Pairc estate in South Lochs on Lewis but at stake is the control of potentially lucrative profits from a proposed multi-million wind farm. The crofting land sale legislation – under part Three of the Act – has never been used in anger since it was introduced by the former Labour administration. Elements of it were seriously flawed and required corrective legislation.

Barry Lomas, the owner of the Pairc estate took the Scottish Government to court after it sanctioned villagers’ right to proceed with a buyout despite Mr Lomas’ protests last year.

Community body Pairc Trust’s aim to take over the land was halted when court action was first raised in May last year.  Residents have declined to buy out the croftland villages, opting, instead, for the unoccupied common grazings. The ground presently has little value expect as rough pasture for livestock but Scottish and Southern Energy’s (SSE) application to build a £110 million dramatically raised the odds. In the middle of the legal fight SSE sold the energy rights to International Power which plans smaller scheme. 

Barry Lomas said: “Pairc Estate has received the Opinion of the Inner House of the Court of Session on the two questions relating to human rights and this now enables the matter to be returned to the Sheriff Court to consider the actual detail of the contested applications to buy the land and the lease, as part of a complex, long and continuing process. 

“This does not affect any efforts by either Pairc Estate or the community to achieve any amicable arrangements.”

The legal row will return to Stornoway Sheriff Court  early 2013 where Sheriff David Sutherland will be asked to rule by the landlord that the public ballot, which returned a Yes vote for the buyout, was invalid. The Scottish Government argues otherwise.  The price tag of the estate is unknown despite an independent valuation by Baird Lumsden. The Scottish Government refuses to reveal the figure until the court cases are over.

In the Court of Session Mr Lomas’ lawyers maintained the land reform law conflicts with the European Convention on Human Rights, is unreasonable under the law and is incompatible with natural justice. They accepted the Scottish Parliament was entitled to legislate for a crofting community right to buy but insisted such a law must meet the “fair hearing” requirements under human rights rules.

They argued the Scottish Government failed to give Mr Lomas “a reasonable opportunity of putting his case.”

It was said the hostile takeover should be carefully scrutinised because it deprived the owner of his property, and was handing it over to a another private owner, thus such a law must meet the “fair hearing” requirements under human rights rules.   Mr Lomas’ legal team claimed the law has “structural flaws” by failing to give the landowner any influence over a community ballot, disregards the landowner’s interests and does not give the landowner an adequate opportunity to put his case to the Scottish Ministers. In addition it fails to provide for an “independent factual inquiry into matters relevant to certain policy aspects of the application.”

His counsel also said it was unfair the very body that wants a positive result from a community ballot which determines villagers go-ahead for the buyout gets a free hand to conduct the vote itself and could “manipulate the ballot to its own advantage.”

Lord Gill, the the Lord President, Scotland’s top ranking judge, headed a panel of three judges which  considered the legal row.  He said he disagreed with Mr Lomas’ stance that human right safeguards must be “explicitly spelled out.”

Lord Gill added: “The question of competence, in my view, depends on how the legislation operates in practice and not on how any specific provision may appear if looked at in isolation. 

He said other regulations provided a remedy for the landlord if the ballot was unfair.   Lord Gill said when the Scottish Government look at the overall public interest, “the central consideration” was of balancing the harm to the landowner against the benefit  to the wider public and boosting the crofting economy. 

He highlighted the weight given to the landowner’s interests when compulsory transferring the land  was “pre-eminently” a matter for the Scottish ministers though the landlord’s right to compensation then comes into play. 

Mr Lomas has offered an amicable deal to villagers on the crofting estate but, to date, there has been no agreement between him and Pairc Trust. He has also criticised two directors on Pairc Trust for standing to profit personally under a giant windfarm application from Scottish and Southern Energy (SSE).  They could make lucrative rentals because  turbines are earmarked to be sited within apportionments they took out on the common grazings.

But Pairc Trust previously attacked Mr Lomas’ criticism of the pair by insisting that was not their motivation for the buyout. The Trust said decisions on turbines locations were made by SSE and Mr Lomas, not by the Pairc Trust while Pairc Trust has no role approving the windfarm.

Pairc Trust said it held a “neutral” view on the giant energy scheme though it highlighted its mandate by the community to maximise the community benefit if it goes ahead.