A shocker for Lewis – today’s revelation that the Scottish Land Court has ruled in favour of the Melbost and Branahuie Grazings Committee in their battle with Highlands and Islands Airports Limited over the disputed land at Stornoway Airport.
The story in brief is that HIAL had sought a ruling that crofting rights at Stornoway Airport had been extinguished when the land was requisitioned during World War Two for an RAF station.
HIAL had been hoping to sell some of the ground to a developer to build 94 new homes but the grazings committee of Melbost and Branahuie objected on the basis that they still had grazings rights. They argued that there was no evidence of a compulsory purchase over the land – so it must still be in crofting tenure.
And the ruling from the Land Court, dated February 6 and delivered today (Thursday) to Lewis Kermack, who represented Melbost and Branahuie, is that the land does indeed remain in crofting tenure.
The last paragraph of the Court’s decision reads: “Notwithstanding that possession of the land in question was acquired by the Air Ministry in or around 1941 and notwithstanding that the landowners were paid compensation based on the permanent loss or restriction of the ability to use that land, the land remains subject to crofting tenure because, for aught yet seen, (i) compulsory purchases were not used to acquire it and (ii) the formalities which would otherwise be required for its release have never been completed.”
The judgement referred to various submissions, one of them from Lewis Kermack pointing out that “in order to terminate crofting tenure there had to be a resumption order or a decrofting direction and no such order was averred here. The applicants (HIAL) had also failed to aver any other mechanism by which the land had been removed from crofting”.
The judgement also said that, having assessed all the submissions and other documents, “it seems to us unlikely that any formal process of compulsory acquisition was undergone…”
It added: “The fact that formal compulsory purchase procedure does not seem to have been resorted to does not mean that there was no element of compulsion in what happened…
“It is understandable that parties would not want to frustrate the war effort by insisting on formalities. All concerned would have known that if things weren’t done voluntarily they could be done compulsorily but, equally, they would, we imagine, have been happy to go along with what was such an obvious requirement of the war effort as possession of an airfield. After all, they knew they were going to receive fair compensation for their loss.”
The BBC carried the story on their website this afternoon, including a statement from HIAL.
Their spokesperson said: “It has always been our intention to develop this land, not for profit, but to create affordable, high-quality homes that would benefit local people.
“We are disappointed the land court’s judgement prevents us from implementing our plans. We will study the court’s decision in full and will assess our position.”
HIAL also apparently said the decision did not impact on the day-to-day airport operations at Stornoway Airport – but it certainly could.
For HIAL to effectively reclaim the land they have been using at Stornoway Airport, they will have to resume it from crofting tenure. Under crofting law, HIAL will also have to offer half the development value to the crofting shareholders.
Lewis Kermack questioned how HIAL could make such a confident statement that day-to-day operations would not be affected when the Land Court had ruled against HIAL on all the disputed sections of land.
“We won everything,” he said, explaining that the judgement related to the large parts of the land at airport – including the terminal building, the tower, the car park, the hanger and one end of the runway – all under common grazings rights.
He wondered whether HIAL had properly checked the Land Court’s decision.
“They think it’s just the RAF buildings, which is wrong.
“The airport have to decide what they want to keep and if they want to keep it then they have to get on with resuming it and paying half the development value to the shareholders of Melbost and Branahuie. They have to get on with that quickly otherwise the shareholders have every right to put their sheep on it today.
“It’s quite a big story.”
Angus Campbell of Melbost and Branahuie Grazings Committee welcomed the decision.
“We are delighted. We’ve been fighting this for the last 20 years. Willie Macfarlane was the main kingpin at the start.
“For 20-odd years, we’ve been saying that the ground did belong to us. It was only in the last three or four years that it all came to a head because of the houses that were going to be built by Calmax.
“The decision is a good decision for the crofters. The croft land is coming back to the people it belongs to – ‘70 years late’, as Lewis was saying.
“It was crofting ground that was given by the people of Melbost and Branahuie for the war effort in the 1940s. They were supposed to give that back when the hostilities were ceased and they haven’t got it back – till we went to court to fight for it to be given back.”
He added: “It’s going to affect other airports round about the north of Scotland if they are within crofting ground. For them to have their land back, they would need to resume the ground and they would have to give us half the development value of the ground. We’re not saying it’s going to be… but it could be quite a lot.
“For us, it’s a big moral victory because the council, Stornoway Trust and the Crofting Commission washed their hands of it – didn’t want to know anything about it, wouldn’t touch it. All these people were asked if they would take it to the Land Court and they said ‘no, they wouldn’t take it to the Land Court’. It’s just a poor show, really.
“It’s the crofters of Melbost and Branahuie who had to take it, and with the help of Lewis Kermack. Without Lewis’s help, we would never have got this victory.
“I’m just really glad that it’s over with. It’s the end of the beginning for us, really. We’ve now got to sit down with HIAL. They need to come to us.”
Calum MacDonald, former MP for the Western Isles and now a community wind farm developer, said: “All the members of the grazings committee and especially Angus Campbell and Willie Macfarlane are to be congratulated for their dogged pursuit of justice on this matter over a long number of years.
“It’s a fantastic success for Lewis Kermack who articulated their arguments so well in the court and it’s a real lesson for crofting communities all over the Highlands and Islands not to give up when faced with big powerful organisations but to continue to fight for their rights.”
Melbost and Branahuie have been involved in this fight for more than 20 years and no wonder they are delighted. To those of us who watch these goings-on, this looks like a really bold decision.
When David takes on Goliath, the odds are never in his favour – so this is quite a surprising outcome but is nonetheless extremely welcome.
It also demonstrates that the Scottish Land Court are not be swayed by size or status when it comes to important decisions over land rights – and thank heavens for that.
Because of course, as regular readers of this blog will know, the Land Court will have a big decision to make soon over who should have the right to develop renewables on the common grazings near Stornoway – four townships (including Melbost and Branahuie) or Lewis Wind Power. French multinational EDF Energy are the main player in LWP but they also have the huge backing of Comhairle nan Eilean Siar and Stornoway Trust – who are very active agents for them – and a whole host of other movers and shakers in the shadows.
Melbost and Branahuie, Sandwick North Street, Sandwick East Street and Lower Sandwick, and Aignish are fighting tooth and nail for the right to have 21 community-owned turbines sited on the land instead of 36 corporate ones – don’t be fooled by the few that are being ‘offered’ to us as a community share; they will be flogged to the community via the council or Stornoway Trust for a king’s ransom – and crofters will continue that fight to the end, come what may,.
It is too early to feel how the wind is blowing. You have to hope the Land Court will make the right decision although it can be hard to keep the faith when you look at the might of the LWP machine.
But tonight belongs to the crofters of Melbost and Branahuie and their excellent adviser, Lewis Kermack, who has written so eloquently on this blog about the lease between Stornoway Trust and Lewis Wind Power in his pieces Who Is Your Landlord? and Who Is Your Landlord 2 – The Facts.
Make no mistake, this is a big ruling by the Land Court. And apart from the interest of the ruling itself, and the various ramifications, this decision is also of huge symbolic importance.
No one is too big to lose in the Land Court…