Pairc Estate loses first court action land reform row 19/12/12
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.
Last night (wed) 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 next year 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.