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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SPECIAL CASE BY THE SCOTTISH LAND COURT IN THE APPEALS BY CROFTERS AGAINST THE CROFING COMMISSION (COIMISEAN NA CROITEARACHD) [2020] ScotCS CSIH_49 (19 August 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_49.html
Cite as: [2020] ScotCS CSIH_49, 2021 SC 63, 2020 GWD 28-371, [2020] CSIH 49, 2020 SLT 1109
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Brodie
Lord Malcolm
[2020] CSIH 49
XA113/19
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Special Case stated by the Scottish Land Court
in the appeals by
CROFTERS having rights in the common grazings of: SANDWICKHILL NORTH STREET;
MELBOST and BRANAHUIE; SANDWICK and SANDWICK EAST STREET; and AIGNISH
against
Appellants
THE CROFING COMMISSION (COIMISEAN NA CROITEARACHD)
Respondents
and
THE STORNOWAY TRUST
______________
Interested Parties
Appellants: J d C Findlay QC, Garrity; Gillespie Macandrew LLP
Respondents: R D Sutherland; Balfour & Manson LLP
Interested Parties: Gill; Pinsent Masons (for Anderson MacArthur, Stornoway)
19 August 2020
Introduction
[1] This is an appeal by four crofting townships near Stornoway against determinations
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by the respondents that their applications for approval of the installation of community-
owned wind farms on their respective common grazings were invalid because the proposals
would be detrimental to the interests of the landowners, namely the interested parties, in
terms of section 50B(2)(b) of the Crofters (Scotland) Act 1993.
[2] The issues are defined by the questions in the special case, viz, in summary: (1) is the
formal validity of an application for approval under section 50B(6) of the 1993 Act a matter
that can be determined by reference to section 50B(2); (2) does such an application require to
be determined in accordance with the provisions of section 58A; (3) is a prospective
commercial enterprise of the landowner a relevant ‘interest’ for the purposes of
section 50B(2); (4) were the respondents’ decisions to allow late objections and
representations of the interested parties lawful and in accordance with the 1993 Act; and
(5) was there sufficient evidence that the appellants’ proposed uses would be detrimental to
the interests of the respondent landowner? At the heart of the substantive questions are the
respective rights of the landowner of a common grazing and the crofters in relation to the
use of the land. That is a matter which is regulated primarily by statute.
The Statutory Framework
[3] Section 50B of the Crofters (Scotland) Act 1993 provides that a crofter, who holds a
right in a common grazing, may propose to the relevant grazings committee that a part of
the common grazing be used for purposes other than the grazing, peat cutting, other
customary uses and woodlands. It is specifically provided that the use proposed must not
be such as would be detrimental to the interests of the owner (s 50B(2)). The section was
introduced by the Crofting Reform etc. Act 2007 (s 26(2)). Previously, the only other
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permitted alternative purpose was woodland (1993 Act s 50) and the landowner’s consent
was required.
[4] On 22 November 2006, at Stage 2 of the passage the 2007 Bill, the Deputy Minister for
Environment and Rural Development (Rhona Brankin MSP) explained to the Environment
and Rural Development Committee that:
“There has been considerable misunderstanding of the purpose and implications of
the section. In the light of some of the more inaccurate comment, it is not surprising
that some owners are concerned. This is not a backdoor route to crofting community
control of the owner’s interests in common grazings. … No one will use the
provision to build houses or wind farms on grazings, as the owner’s rights –
including the right to resume – will persist. This is about facilitating new uses that
would not be detrimental to existing uses by the graziers or the owner. … I am in
absolutely no doubt that, in deciding whether to approve an application, the
commission will be required to satisfy itself that the requirements of that subsection
are met.”
[5] On 25 January 2007, at Stage 3, a new Deputy Minister (Sarah Boyack MSP) said:
“Proposed new section 50B … is intended to allow for alternative use by all those
who hold grazings shares, either collectively or individually. … During our stage 2
debates, Rhona Brankin explained why new uses of common grazings would be
unlikely to involve physical development… I stress that new section 50B(2) of the
1993 Act will provide that a new use must not be detrimental to the interests of the
owner. A use that could result in a loss of value or a need for remediation at the
owner’s expense would clearly be detrimental and could not be permitted. …”
[6] The procedure for processing a proposal is that the committee summon a meeting of
the crofters for a discussion and a vote (s 50B(3)). Section 50B(4) provides that common
grazing regulations shall provide that notice of the meeting is intimated to the landowner,
who may give his views on the proposal. If the vote of the crofters is in favour of the
proposal, the committee must apply to the respondents for its approval (s 50B(6)).
[7] The application to the respondents is governed by section 58A of the 1993 Act. This
too was introduced by the 2007 Act (s 3), but the section applies to approvals or consents not
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only of applications for the use of a common grazing for other purposes but also a
considerable number of other applications including the exchange, assignation, division and
letting of crofts. There must be public notification of the application (s 58A(3)(a) and it must
be intimated to the landowner (s 58A(3)(b)). Within 28 days of public notification, the
landowner may object to the proposal (s 58A(3)). The respondents may (s 58A(5A)) accept
an objection submitted outwith the 28-day period, if they consider there is “a good reason
why the objection is late”. After the expiry of the 28-day period, the respondents must make
a decision by granting (with or without conditions) or refusing the application. In doing so,
they must (s 58A(7)) have regard to, inter alia, the interests of: the estate which comprises the
land; the local crofting community; and the public at large. They must take into account any
objection made by the landowner and any other matter which they deem relevant.
Background
Procedure
[8] In 2010, the interested parties leased land to a consortium, namely Stornoway Wind
Power (SWP), whose shareholders include EDF Energy, for the purpose of developing a
36 turbine windfarm on the common grazings of the appellants and several other townships.
In 2012, SWP obtained planning permission for the development. In June 2017, the
interested parties applied, under section 19A(1)(a) of the 1993 Act, for consent to use the
common grazings for their proposed windfarm. That application is contested and is sisted
pending this appeal. The Land Court has determined, by way of a preliminary ruling in that
process, that the appellants’ section 50B applications may be relevant to the section 19A
application (see s 19A(3)(b)).
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[9] Meantime, between June and September 2016, each of the appellants proposed the
development of wind turbines on their respective common grazings. These were for:
8 turbines at Melbost; 1 turbine at Sandwickhill; 10 turbines at Sandwick; and 2 turbines at
Aignish. The location of the turbines on the appellants’ grazings is the same as those of the
larger SWP scheme. The interested parties had objected to the Melbost and Aignish
proposals on the basis that they would be detrimental to their interests. No objections were
tabled with the grazings committees of Sandwickhill or Sandwick. The relevant grazings
committees put the appellants’ proposals to a vote of the crofters. Between August and
October 2016, the crofters voted in favour of the proposals.
[10] The appellants submitted applications for approval of their proposals to the
respondents between September 2016 and April 2017. At the time, no official form had been
devised and the applications consisted of letters with documents attached. Almost a year
went by, during which there was correspondence concerning whether or not the
applications, other than Aignish, had been duly notified. They had been advertised in the
Stornoway Gazette, but there had been no mention in the advertisement of the right to
object, the time in which to object or the body to which objections could be sent. The
statutory provision (1993 Act, s 58A(3)(a)) stipulated only that public notification should be
made.
[11] It was only in November 2017 that the respondents wrote to the interested parties
stating that the notification requirements for all the applications had been met. The
interested parties claimed that they had no record of receiving intimation of the applications,
albeit that they later acknowledged that they had received that for Sandwickhill. By letter
dated 8 January 2018, they wrote to the respondents stating that previously a member of the
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respondents’ staff had told them that a valid application had not been received, but when it
had, the interested parties would be notified. The respondents accepted that this was what
had happened. On receipt of confirmation that proper notification had been made, the
interested parties sought to lodge objections.
[12] By letter dated 12 March 2018, the respondents granted the interested parties’ request
to lodge objections. This stated:
“We acknowledge that our letter of 8 November 2017 was the first correspondence
which you received from the Commission which confirmed we were in receipt of a
valid application. In the circumstances the Commission agree to afford the landlord
the opportunity to submit an objection to the section 50B application should they
wish to do so.”
The Land Court describe what had occurred as follows:
“[80] On any view of things this sequence of events, punctuated, as it was, by such
lengthy delays, was highly unsatisfactory. It justifies the mounting exasperation and
criticism which is apparent in letters sent from the various committee Clerks to the
Commission as time went on… The fact is that the committees had done all that was
required of them, and done it timeously, but both the Commission and the Trust
seemed to spend a year or more in a fog of uncertainty as to what advertising and
intimation of the applications had taken place… “.
The objections and the respondents’ decision
[13] The interested parties maintained before the respondents that the proposals,
including that at Aignish, conflicted with the option agreement which they had with SWP.
SWP would withdraw from the agreement. This would in turn result in the proposed grid
inter-connector from Lewis to the mainland not going ahead. The interested parties would
lose the rent which had been agreed with SWP.
[14] The appellants contended that their proposals would pay the same rental income to
the interested parties. They doubted whether SWP would obtain a section 19A consent
because of uncertainty surrounding the new type of Government subsidy and whether the
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Government would approve the inter-connector. The interested partyies’ scheme faced
many hurdles. It had existed for 15 years without implementation while other, community-
owned, schemes had gone ahead. Three conditions would protect the interested parties
from detriment: payment of equivalent rent to that which would have come from SWP;
payment of a minimum of £200,000 per annum to the interested parties; and an offer of a
20% purchase option similar to that which was in the SWP lease.
[15] In their decision letter of 14 September 2018, the respondents noted, in connection
with the proper construction of section 50B of the 1993 Act, the remarks (supra) which had
been made at Stage 2 of the Crofting Reform Bill in 2006. They reasoned that, where a
landowner made an objection based upon detriment, they were obliged to consider it in
light of the mandatory terms of the section. Although any detriment had to be objective,
and not subjective or de minimis, the section would apply even when the detriment was
relatively minor or small. The respondents were not considering the wider interests of the
estate under section 58A.
[16] In respect of all the appellants’ proposals, the respondents rejected all but one of the
examples of detriment put forward by the interested parties. They continued:
“7. The Commission has considered the submission from the landlord that
implementation of the proposed use would prevent the larger Stornoway Wind Farm
development from proceeding, and that this would be detrimental to its interests. In
this context, the Commission also notes the statement from the landlord… that
development would be ‘unlikely’ to go ahead on a ‘piecemeal’ basis rather than as
one ‘cohesive’ development. The landlord has informed the Commission that a
section 19A Scheme for Development application has been made with the landlord’s
consent (the Stornoway Wind Farm proposed development) for a development
involving the various common grazings… The landlord further states that
preventing the Stornoway Wind Farm proposed development from going ahead
would be detrimental to its interests by depriving it of the benefits it would receive
from the larger Stornoway Wind Farm development set out in the section 19A
application. The Commission accepts that implementation of the section 50B
proposed use would make more difficult, and could prevent, the implementation of
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the landlord’s own preferred larger Stornoway Wind Farm development, in which
the landlord has invested time and resources. The Commission further accepts that
such an impediment to the implementation of the larger Stornoway Wind Farm
development would be detrimental to the interests of the landlord.”
On this basis the respondents refused to approve the schemes.
[17] In relation to Aignish they added that:
“4. The Commission accepts that any semi-permanent structure such as a wind
turbine, cabling and any substations would likely accede to the land after affixation
of any such accessories. The landlord has identified… that there could be liabilities
for maintenance of the … accessories during their lifetime and that there could also
be liabilities associated with their removal when they reach the end of their lifespan
and the land has to be restored to its original condition. The Commission does
however accept that the proposed use would last several decades from construction
though to eventual decommissioning, but the term of office of a grazings committee
is three years only. The Commission accepts that in the event of a grazings
committee falling out of office or being unable (for whatever reason) to meet any of
the liabilities associated with the proposed use, any such liabilities would likely fall
on the landlord as owner of the land. In light of this, the Commission accepts that
there would be detriment to the interests of the landlord.”
The Land Court
[18] The appellants relied on five grounds of appeal before the Land Court. First, the
respondents had not been entitled to determine that the applications were invalid in terms
of section 50B(2) of the 1993 Act. Secondly, there had been insufficient evidence of
detriment. Thirdly, the objections ought not to have been taken into account because of their
lateness. Fourthly, the respondents had failed to take into account the factors listed in
section 58A(7) of the 1993 Act. Fifthly, the respondents had failed to exercise their discretion
by considering themselves prohibited from addressing the applications under
section 58A(7). In the Aignish appeal, it was not contended that the objections had been late.
It was argued that the respondents had been wrong to uphold the objection about the
potential future liabilities of the interested parties. Accession was not a matter of fact for the
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respondents to determine. The respondents’ finding of detriment based on future liabilities
was irrational because, in the three other appeals, the same complaint had been found not to
have been established. The respondents failed to take account of the amendment to the
plans for the Aignish scheme which reduced the number of turbines from two to one. This
ground was not advanced in oral submissions, but it had not been abandoned.
[19] On the first ground, the Land Court determined that the respondents had not erred
in treating the matter of detriment as a preliminary point. Section 50B(2) expressly provided
that a proposal, which was detrimental to the interests of the landowner, was not valid. It
was not a proposal that grazings committees were entitled to submit to the respondents for
approval. Grazings committees’ functions were administrative and facilitative, not quasi-
judicial. Permitting a committee to determine validity was to confer on the crofters’ vote the
“Midas touch of rendering valid a proposal which up until then may have been invalid”. As
distinct from the committees, the respondents were an objective, statutorily constituted,
regulatory body which performed a quasi-judicial function. Grazings committees were not
at arm’s length from the crofters.
[20] There would be no point in section 50B(2) prohibiting proposals which were
detrimental to the landowner’s interests, if detriment were to be dealt with only in the
general balancing exercise under section 58A(7). The prohibition in section 50B(2) showed
that Parliament had intended it as a threshold or gateway condition of validity; separate
from section 58A(7). Resort to Parliamentary material was permissible only if there were
ambiguity. If there was, the statement at stage 2 of the Bill (supra) could be relied upon. It
accorded with the Land Court’s interpretation. The express provision, which protected the
interests of the landowner and the absence of powers to compel the landowner to facilitate
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the proposed development, showed that what was envisaged was consensual development
or at least that which made no great inroads into the landowner’s interests. It was not that
landowners had a “trump card” to be played at any time; the detriment was for landowners
to prove.
[21] The detriment had to be real and not spurious. Detriment need not always render an
application invalid. Minimal levels of detriment would be best as part of the balancing
exercise in section 58A(7) which left room for at least a de minimis exception. The level of
detriment found by the respondents was significant and substantial. Detriment might
depend on the attitude of the landowner. There would be cases, such as the present, where
detriment would go to validity. There would be others where the landowner would be
content to allow detriment to be taken into account as part of the balancing exercise.
[22] On the second ground, the respondents had not erred on whether there would be
detriment. The interested parties’ and the appellants’ schemes could not both go ahead.
The appellants’ plans were not just potentially detrimental, they were potentially fatal to the
interested parties’ plans. Approval of the appellants’ applications would be “an immediate,
present detriment”. At the time of the respondents’ decisions, years of preparation and
planning had gone into the wind farm project, including the commencement of the lease in
2010, the obtaining of planning consent in 2012 and the lodging of the application under
section 19A in 2017. The plans constituted an interest to defend, in terms of protecting the
progress and investment already made.
[23] On the third ground, the appellants were challenging the respondents’ exercise of
their discretion to receive the late objections. There had initially been uncertainty, which
was shared by the respondents and the interested parties, about whether valid applications
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had been received. After that had been resolved, there continued to be doubt about whether
there had been proper intimation to the interested parties.
[24] The question was whether the respondents had something which they could
reasonably consider to be a good reason for the objections being late. The respondents had
led the interested parties to understand that they need not respond to the applications until
all doubts about their validity had been removed. This was an assurance that the objections
would be received. That wrongly fettered their discretion. However, whereas it would
always be prejudicial to those in the position of the appellants to give their opponents “a
second bite at the cherry”, the interested parties had “gained nothing more in the way of
advantage in this case”. The circumstances had not changed during the year-long delay.
The delay did not weaken the appellants’ position. The Land Court continued:
“Although [the respondents’] thinking on this is not spelt out in any of the
correspondence we have seen, we can well understand that the importance of the
issues in this case might well be regarded as outweighing prejudice of that sort.
Accordingly it cannot be said that the [respondents] exercised their discretion under
subsec 85(sic 58)A(5A) in an unreasonable fashion. The result is that the [interested
parties’] objections were competently before the [respondents] and the [respondents]
were entitled to take them into account.”
[25] On the fourth ground, consideration of the factors listed in section 58A(7) could not
arise once the respondents had determined that the applications were invalid. The
respondents were not required to carry out a comparison of the two sets of schemes. It was
not for the respondents to decide what was in the landowner’s interests. That was for the
interested parties to do. The respondents did appear to have failed to consider whether to
attach conditions to the approval. However, given that the projects could not co-exist, it was
difficult to see how mitigating conditions could be attached.
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[26] On the fifth ground, the respondents had not been exercising, or failing to exercise, a
discretion by not proceeding to a balancing exercise under section 58A(7). They had, rather,
found as a matter of fact that the proposed use of the land would be detrimental to the
interested parties’ interests.
[27] The ground of appeal going to the finding of detriment in respect of Aignish was,
standing the Land Court’s findings on detriment, which were common to the four appeals,
“neither here nor there.” The amendment to the planning application had been submitted
after the respondents’ decision on the Aignish application. If the SWP scheme did not go
ahead, or if it went ahead on the basis of amended plans which allowed it and the Aignish
proposal to co-exist, the matter could be revisited by the parties.
Submissions
Appellants
[28] In relation to question 1, the appellants essentially repeated the central argument
which had formed the first ground of appeal to the Land Court. They submitted that the
formal validity of an application for approval did not fall to be determined under
section 50B(2). All applications fell to be decided according to the factors in section 58A(1).
Section 58A(2) required applications to be in a form specified by the respondents.
Section 50B(2) was of no relevance to the form or content of an application to the
respondents. Section 50B’s purpose was to permit diversification of crofting activities with a
view to sustainable development. Windfarm development was such an activity.
Section 50B provided a process whereby a proposal could be put to the relevant grazings
committee. If those entitled to vote at the grazings committee determined in favour, the
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committee was obliged to apply to the respondents for approval. The crofters’ decision
under section 50B(6) was the end-point of that initial process. Section 58A provided the
framework for approval. That exercise involved balancing the interests of those parties
concerned in the grazing and the consideration of the imposition of conditions. It did not
permit the respondents to have regard to the detriment of only one party.
[29] There was no right of appeal against the decision of the grazings committee (sic).
The only remedy would be a petition for judicial review. The respondents were a creature
of statute. They had to act within the 1993 Act (Garvie’s Trustees v Still 1972 SLT 29 at 36;
no power to second-guess a decision of a grazings committee (sic). The respondents’
decision effectively provided the landowner with an extra-statutory veto. The issue of
detriment involved a judgment on the merits and would depend on evidence. If the Land
Court were correct, a valid decision of the grazings committee (sic) could become invalid
subsequently. It could not have been the intention of Parliament to provide the respondents
with powers of summary dismissal of an application or to provide the landowner with a
veto. All that the respondents needed to satisfy themselves about, in terms of prior
procedure, was that the application by the grazings committee satisfied the correct
procedural requirements. The reference to conferring a “Midas” touch was misplaced, to an
extent pejorative, and was taken too far. There would be no gold for the applicant unless the
respondents were satisfied under section 58A.
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[30] On question 2, the respondents required to determine an application in accordance
with section 58A of the 1993 Act. This was supported by the express terms of sections
50B(6), 58A(1) and 58A(7). The respondents were not empowered to act as an appellate
body in relation to a decision of a grazings committee (sic) which was made in accordance
with the provisions of section 50B.
[31] On question 3, Parliament could not have intended that each individual crofter was
expected, at the stage of making a proposal, to have in-depth knowledge of the financial or
commercial interests of the landowner such that he could assess whether his proposal would
cause detriment to those interests The proper interpretation of section 50B(2)(b) was that
“the interests of the owner” did not extend beyond: (a) the rights reserved to the landowner
in terms of para 11 of Schedule 2 of the 1993 Act (eg mining and quarrying, creation of
roads, inspection, hunting, shooting and fishing); and (b) any extant right obtained under
section 19A of the 1993 Act. As a result of the rights of the crofters, a landowner had no
right to development, unless and until he received consent under section 19A. The
respondents did not have any such consent. The respondents erred in considering that the
interested parties’ speculative involvement with the SWP scheme constituted an “interest”.
[32] On question 4, whilst the respondents had a discretion to allow a late objection, they
had no proper basis upon which to do so. In three of the four applications, the interested
parties were allowed to put in very late objections, despite it being clear that the applications
had been timeously intimated and advertised. The only reasons for so doing related to the
actions of the respondents. No excuse, and no evidence for any excuse, had been provided
for the delay that led to the 28 day statutory time limit expiring. The excuse advanced was
that the respondents had given the interested parties to understand that they need not
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respond to the applications until all doubts as to their validity had been removed. There
was no consideration of the interested parties’ own actions in stating that they had not
received the applications, when they had. There was no consideration of any impact on the
applicants. The interested parties had gained an advantage. They were allowed to lodge
objections and raise the issue of detriment. The Land Court founded on the importance of
the issues at stake, but that was not a reason advanced by the interested parties. There was
no indication that the respondents had approached the matter other than solely through the
lens of the interested parties.
[33] On question 5, the appellants proceeded on the hypothesis that the respondents were
entitled to make a determination on each application by reference to section 50B(2). The
appellants had made four separate applications for approval; one for each common grazing.
Each application was for approval of a different number of turbines. Even assuming that the
interested parties’ development was an “interest”, the respondents did not have sufficient
evidence of detriment. All that it had was an unspecified and unquantified assertion. For
example, in the application by Sandwickhill, there was no evidence on how a single turbine
would be detrimental. On the Aignish application, the respondents upheld the claim of
detriment on the basis of reinstatement liabilities. There was no evidence of either: (a) the
likelihood of success or failure of the appellants’ proposals; or (b) any liabilities that might
arise. There was no assessment of what net benefit might accrue to the interested parties,
were those circumstances to arise. The respondents erred in holding, without evidence, that
each separate application by the four committees would automatically result in quantifiable
detriment. The need for a proper consideration of the evidence demonstrated why a
summary rejection process was both inadequate and unlawful.
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Respondents
[34] On question 1, the respondents maintained that the issue was whether the
respondents were entitled to consider the validity of a proposal under section 50B as a
preliminary matter and to refuse to consider the merits. The words should be given their
ordinary meaning unless that resulted in an absurd, repugnant or inconsistent result (Craies:
Legislation (11th ed), paras 17.1.1 to 17.1.11). A particular provision had to be construed in the
context of the legislation as a whole. If the legislation was ambiguous, assistance could be
sought from a clear ministerial statement (ibid para 20.1.20).
[35] The right of a crofter in respect of the common grazing was one of pasturage, rather
than tenancy (Ross v Graesser, 1962 SC 66). The crofter had a right to use the common
grazing for cutting and stacking peats and other customary activities (Mackay v Pickles 1977
SLCR App 42; MacDougall v Secretary of State for Scotland 1993 SLCR 126). The 1993 Act
supplemented these uses and attempted to balance the interests of crofters and the
landowners. Since 1991, grazings committees could use part of the grazing as woodlands
(see now 1993 Act, ss 48 and 50). Consent of the owner was required (ibid). Section 50B
provided that a crofter could propose other purposes subject to the rights and interests of
the landowner. The consent of the landowner was not required.
[36] Section 19A allowed a landowner to apply for consent to a scheme of development.
He required to satisfy the Land Court that there was a “reasonable purpose” to the
development. Such a purpose included the generation of energy (1993Act, s 20(3)(a)(viiia)).
Where a landowner proposed a wind power project, the crofters were compensated and
entitled to a share in any increase in the value of the land. There was no equivalent in
section 50B. When the 1993 Act was amended by the 2007 Act, it would have been
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anomalous for Parliament to have made provisions for compensation to crofters in respect of
the loss of the common grazing, and to provide them with a share in the financial benefit
accruing to the landlord, without making similar provisions for compensation to a
landowner when the common grazing was to be used for a materially different purpose
without the owner’s consent.
[37] The language of section 50B(2) was both mandatory and clear. The ordinary
meaning of “detrimental” was diminishing or damaging. The ordinary meaning of
“interests” was that a person had an advantage, concern, benefit or claim. If a proposal was
for a use which was not already permitted, and it was detrimental to any interest of an
owner, it was not within the scheme of the Act. The consequences of any proposal which
interfered with the owner’s interest should be in line with the activities permitted by the
common law. They ought to result in de minimis interference with the rights of the
landowners, and therefore capable of being implemented without a detailed examination of
what conditions would be necessary. If the provisions of section 50B were ambiguous, it
would be relevant to consider the ministerial statements that the provision was not a
backdoor route to crofting community control of the owner’s interest in the common grazing
land. If crofting communities wanted to have control of common grazing, their only option
was to buy the owner’s interest. The appellants’ interpretation was inconsistent with the
property rights of the owner under Article 1 of Protocol 1 of the European Convention on
Human Rights.
[38] The respondents were required to carry out a balancing exercise in relation to all of
the relevant factors specified within section 58A(7). By contrast, section 50B(2)(b) was
concerned only with the detriment to the interests of the owner. The test was not the same.
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There was no balancing of interests. Where a proposal was not valid for the purposes of
section 50B(2), the fact that an invalid proposal had been supported by a vote did not
preclude the respondents from considering its validity. It would be ridiculous for the
respondents to consider the merits of a proposal when the proposal was invalid.
[39] The appellants’ argument, that if the majority of shareholders voted to support an
invalid proposal, the only remedy would be by judicial review, was erroneous.
Section 58A(4)(a) did not limit the nature of an objection. There was no reason to believe
that Parliament intended to exclude an owner from objecting to the validity of the proposal
under section 58A(4)(a). As the remedy of judicial review was not available where there was
an alternative remedy, there was no reason for the court to exercise its supervisory
jurisdiction. Judicial review was not an appropriate form of remedy. The body which was
best placed to make the determination was the respondents.
[40] Question 2 raised the same issues as question 1. Where there was no issue about the
validity of a proposal, the respondents were not required under section 58A to make a
decision on the merits. The respondents were entitled to consider the validity of the
proposal as a preliminary matter.
[41] On question 3, the Land Court decided that the appellants’ proposals would make
the implementation of the larger SWP scheme, in which the interested parties had invested
time and resources, more difficult and could prevent it from taking place. Such an
impediment would be detrimental to the interests of the landowner. The SWP scheme was a
project which was obviously an interest that the landowner had both as the owner of the
common grazing and as a part-owner of SWP. The appellants’ proposals were intended as
an alternative. Having regard to the meaning of interests and detrimental in section 50B(2),
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19
the respondents and the Land Court were correct to find that the interested parties did have
a relevant interest.
[42] On question 4, the respondents had a discretion to consider a late objection. Until
November 2017 the respondents had been uncertain of whether three of the appellants had
properly advertised their applications. There was also uncertainty on whether the interested
parties had been given proper notification. The Land Court’s reference to the interested
parties being given a second bite at the cherry was an inappropriate analogy. The interested
parties did not submit objections on two occasions. The interested parties did not gain an
advantage, nor had the position of the appellants been weakened.
[43] On question 5, for the reasons already stated in relation to the question 3, the Land
Court was correct to find that the interested parties had an existing interest and that the
proposals would be detrimental to that interest.
Interested Parties
[44] The interested parties observed that the questions were essentially those which had
been proposed by the appellants in the draft special case. The first, second and third
questions (at least) were tendentious and irrelevant. They did not properly reflect the terms
or reasoning of the Land Court. Any answer to those questions would not give rise to any
requirement for the Land Court “to bring its decisions … into conformity with the opinion”
(Rules of the Scottish Land Court Order 2014, rule 87(2)).
[45] Question 1 was irrelevant because the Land Court made no decision about the
formalities of a section 50B(6) application. Its decision related to the substantive
requirement, which was imposed by section 50B(2), for the respondents to determine
detriment as a preliminary point of validity. The appellants’ position would produce an
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20
artificial and undesirable result. It would require the respondents to process an application
which was invalid. It was not open to a crofter to propose that all or part of the common
grazing be used for a purpose that was detrimental. It must be a part of the approval
process that the respondents satisfy themselves that they had a valid proposal. The function
of a grazings committee was administrative and facilitative rather than quasi-judicial. By
including the prohibition of detriment, the Parliament intended it to be a threshold or
gateway condition of validity; separate from section 58A(7). Although section 50B provided
a vehicle for crofters to propose additional uses, the provision which protected the interests
of the landowner, showed that what was envisaged was development which made no great
inroads on the landowner’s interests. Although the Land Court’s interpretation of sections
50B and section 58A did not require any resort to Parliamentary material, it accorded with
the ministerial statements
[46] In so far as it went, question 2 was uncontroversial. Any requirement under the 1993
Act to obtain the approval of the respondents was subject to section 58A. This question was
irrelevant because the Land Court made no decision to the contrary. It accepted that, if the
respondents found that an application was valid, it had to apply the provisions of section
58A. The respondents were not entitled to approve applications which they believed to be
invalid. A finding of detriment at the outset prevented the respondents getting as far as
section 58A(7).
[47] Question 3 was tendentious in its narrow framing of the particular interests of the
interested parties. A lease had been entered into in 2010, planning consent had been
obtained in 2012 and a section 19A application had been lodged in 2017. The SWP scheme
and the appellants’ proposals could not both go ahead. The interested parties had expended
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significant time and money in progressing the SWP scheme. If the appellants’ applications
were to be approved, that expenditure would be irrecoverable. It was misleading to frame
the interested parties’ interests as merely a prospective commercial enterprise. The term
“interests” was wide and should be construed accordingly to include both current and
future interests, extending to both the value of the land and the owner’s rights to use and
develop the land.
[48] On question 4, the appellants were attempting to re-open a discretionary decision to
accept the interested parties' objections late. However unsatisfactory the circumstances, the
question was whether the respondents had something which they could reasonably consider
to be a good reason. It could not be said that the respondents had exercised their discretion
unlawfully. The good reason was that the respondents had led the interested parties to
understand that they need not respond to the applications until all doubts about their
validity had been removed. The delay did not give the interested parties any advantage or
weaken the appellants’ position.
[49] On question 5, determination of the weight to be given to evidence was for the
respondents’ discretion. The respondents had been entitled to come to their conclusion on
detriment. The interested parties’ position, that the use of each of the relevant common
grazings by the crofters would give rise to detriment, had been obvious to all parties from
the outset. As a result, the respondents had been given lengthy and detailed representations
addressing that question. The submissions of the interested parties provided an adequate
basis for the respondents’ findings (MacDougall v The Crofting Commission 2016 SLCR 109, at
para 23). The respondents were not required to have regard to the interests of the crofting
community and the sustainable development of that community as material considerations.
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The merits of the appellants’ proposals were irrelevant. The respondents were not required
to carry out a comparison of the two sets of schemes. The only question was whether what
was proposed constituted a detriment. The respondents were not required to take account
of the possibility of attaching conditions to any approval. Given that the two schemes could
not co-exist, a condition attached to any approval would not be capable of mitigating its
effect on the interested parties’ interests. Even an alleviated detriment was still a detriment.
Decision
Questions 1 and 2
[50] The subject matter of this appeal draws into sharp focus the rights of a landowner
and those of the crofter in the use of a common grazing. The context, of what is ultimately a
straightforward question of statutory interpretation, is to be found in the protections
afforded to crofters in the Crofters Holdings (Scotland) Act 1886 and the gradual extension
of crofters’ rights in the legislation which has followed. Central to the main issue is the
approach of the 1886 reform. The Act was, of course, intended to address the crofting
communities’ extreme concern about, inter alia, being dispossessed by the landowners, who
sought to use the land, including both the crofts and the common grazings, for other
purposes which they perceived to be more economically advantageous to their estates. The
crofters’ direct actions, in relation to the evictions which were being carried out, was, in part,
to occupy the land which they regarded as their heritage. The 1886 Act’s approach, which
continues into the modern era, was nevertheless to continue to regard the crofter as a tenant
of the landowner and even then only of his in-bye croft land, albeit with grazing rights in the
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out-bye township area. The landowner remained, and remains, the proprietor of the grazing
land and landlord of the crofter in relation to the croft itself.
[51] The 1886 Act (s 1) described a crofter as the tenant of his holding. This remains the
case. He is the tenant of his croft in terms of the Crofters (Scotland) Act 1993 (s 3(3)). The
essence of the relationship is thus defined, with the landlord being the owner of the holding
and the crofter, as tenant, being given certain statutory rights, notably, in the 1886 Act,
security of tenure, a fair rent and compensation for improvements. “Holding” was defined
in the 1886 Act (s 34) as any piece of arable or pasture land held by the crofter, including his
house, but not any garden ground. This definition remains relevant (1993 Act, s 3(1)). The
1886 Act made no mention of the common grazing. A holding or croft is to be understood as
the relatively small area of ground, upon which the croft house usually sits, which is used
for the growing of crops and hay or keeping the beasts in-bye (cf, however, Ross v Graesser
1962 SC 66, Lord Sorn at 76).
[52] There was no doubt that, despite the absence of any specific mention of it in the 1886
Act, a crofter had the right to graze his beasts on the out-bye land of the township. The
absence of a reference to the common grazing was remedied shortly after the principal Act
by the Crofters Common Grazings Regulation Act 1891. This provided (s 2; now the 1993
Act, s 47) for the appointment of a grazings committee which could regulate the use of the
grazing as between the relative crofters. There was no question of the committee having any
role in the regulation of uses as between the landowner and the crofter.
[53] It was only with the passing of the Small Landholders (Scotland) Act 1911 that a
crofter (in that Act termed a “landholder”) was given (s 10(1)) a statutory right to make use
of the holding for purposes which were subsidiary or auxiliary to cultivation, but even then
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only, in the event of a dispute with the landowner, with the consent of the Land Court.
Consent would be forthcoming if the usage was “reasonable and not inconsistent with the
cultivation of the holding”. The use envisaged was on the in-bye land of the croft and not
on the common grazing.
[54] The Crofters (Scotland) Act 1955 in part consolidated the previous legislation. It
again defined (s 3) “crofter” as the tenant of a croft. The croft was the holding and, “For the
purposes of this Act”, the right in the common grazing was “deemed to form part of the
croft” (ibid s 3(4)); see now the 1993 Act, s 3(4)). In the special case of Ross v Graesser (supra)
it was made clear that, notwithstanding the terms of the 1955 Act, a common grazing did not
form part of a croft in the sense of the crofter having a title, tenancy or other real right in the
common grazing land. The right was an incorporeal one; an “ancillary right outside the
croft which constitutes a pertinent of it” (ibid LP (Clyde) at 74). In Crofters Commission v
Arran 1997 SLT (Land Ct) 22 the court was content (at 23) to adopt the statement in Walker:
Principles (3d ed, III, 132) that “A right of common grazing is not a right of property but a
right, of the nature of a servitude…”.
[55] The Crofters (Scotland) Act 1961 added another dimension by providing (s 5) that the
crofter could erect buildings or other structures on his croft, such as were reasonably
required in connection with any “subsidiary or auxiliary occupation” and which would “not
interfere substantially with the use of the croft as an agricultural subject”. The right was to
build on the in-bye land and not on the common grazing. This is in keeping with the
subsequent right to acquire ownership of “the site of the dwelling-house on or pertaining to
his subject”, including garden ground, which was introduced by the Crofting Reform
(Scotland) Act 1976 (s 1; now the 1993 Act, s 12). There is no right to acquire any part of the
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common grazing, although such a right may be bought or otherwise obtained (eg Halistra
Common Grazings Trustees v Lambert 1997 SLT (Land Court) 7).
[56] The next advance came with the Crofter Forestry (Scotland) Act 1991 (s 1), which
amended the 1955 Act to enable the grazings committees to authorise the planting of trees
on the common grazing and to use that part as woodlands. Critically, in relation to this
historical analysis, in order to do so, they required to obtain not only the approval of the
respondents but also the consent of the landowner. The landowner retained a right of veto.
That remained the case when the 1993 Act consolidated the previously extant legislation
(1993 Act, s 50(1)(b)).
[57] Another innovation, which is not without significance in relation to what the
appellants are trying to achieve, was the Land Reform (Scotland) Act 2003. It enabled (s 73) a
crofting community body, with consent of the Scottish Ministers, to buy ”eligible croft land”.
This includes (s 68) not only the crofts themselves but any part of the common grazing
(s 68(2)(c)(i)). The test is whether the acquisition is in the public interest (s 74(1)(n)). It is this
Act which enables a community to acquire especially the common grazings and thus to
introduce what they regard as appropriate, and perhaps progressive, land uses, including
those which may not be in keeping with the preservation of the grazings either for purely
agricultural purposes (for the benefit of any active crofters) or primarily for traditional
hunting, shooting and fishing as organised by the owner of these rights.
[58] The Crofting Reform etc Act 2007 made further provision in relation to common
grazings. It did so, first (s 26), by amending section 50 of the 1993 Act to restrict the
landowner’s right to refuse consent to the use of the common grazing for woodlands to
certain specific grounds. These grounds included that use for woodlands would adversely
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affect the landowner’s rights under schedule 2 of the 1993 Act. These are the rights, inter
alia, to mine and quarry, to construct roads and to hunt, shoot and fish. Other grounds are
that the woodlands would be detrimental to the sound management of the estate or cause
the landowner undue hardship. The significance of the progress of the legislation in this
area is that it continues to recognise the fundamental principle that the landowner remains
the person who has title to the common grazing land, albeit subject to the crofters’ rights to
graze. Subject to certain further statutory provisions introduced by the 2007 Act (infra), the
landowner has the right to prevent the crofters from introducing different uses.
[59] Secondly, the 2007 Act (s 30) amended the 1993 Act by introducing section 19A,
which permitted the landowner to present schemes for the development of the common
grazing; that is to use it for purposes inconsistent with grazing. Such a scheme requires the
consent of the Land Court. That consent will depend (s 19A(2)) upon whether the
development: is for a reasonable purpose; is not unfair; provides compensation to the
crofters as if the land had been resumed; and benefits the community financially. The
existence of a scheme of compensation, when the crofters’ rights are being interfered with, is
significant when it comes to analysing the provisions which enable the crofters to propose
their own alternative uses.
[60] Thirdly, in part 4, which is dedicated specifically to common grazings, the 2007 Act
introduced (s 26(2)) section 50B of the 1993 Act, which is headed “Use of common grazing
for other purposes”. As distinct from section 19A, this deals with how a crofter might
propose to use the grazing for a purpose other than the customary ones (eg peats, 1993 Act,
s 52(9)) or woodlands. The terms of this provision are clear. In terms of section 50B(2)(b)
“the use proposed must not be such as would be detrimental to… the interests of the
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owner”. That is a prerequisite of any proposal by a crofter. It follows that, if there is
detriment to the landowner, the proposal cannot subsequently be approved for
implementation, as it requires to be, by the respondents (s 50B(6)).
[61] Section 50B(2) is a stand alone provision. Its application is not dependent upon any
decision of the grazings committee. Although a committee would be unwise to proceed
with a proposal, which is manifestly detrimental to the interests of the owner, since it would
thereby be contrary to the statutory provision, it is not specifically tasked with determining
that matter. It is not, of course, the committee which votes on the proposal but the crofters
themselves. Whether it is all the crofters as a group who are making the proposal, or a
single crofter who is seeking the approval of his fellow common graziers, the question of
detriment to the landowner cannot be definitively answered by the crofters’ vote. If it were
otherwise, they would each be auctor in rem suam (a judge in their own cause).
[62] As distinct from the 2007 amendments, which are specific to the common grazings’
regime in the 1993 Act, the 2007 Act introduced (in Part 1, s 3) a quite separate provision
(s 58A) which lists factors (s 58A(7)(a)-(h)) which the respondents must take into account
when dealing with a wide variety of applications for their approval or consent under the
1993 Act. It is important to note that section 58A(1) states that it is “subject to any express
provision made by this Act in respect of any category of case”. Although that proviso may
have been unnecessary, given the normal tenets of statutory interpretation, it makes it clear
that the requirement for the respondents to take into account the listed factors is subject to
any express provision relating to specific applications. Such a provision is contained in
section 50B(2) which, as already noted in relation to the common grazings, requires that any
proposed use should not be detrimental to the interests of the landowner. In that way, a
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28
lack of detriment is a prerequisite to approval. If the landowner demonstrates detriment,
the proposal must fail, even if it is in the interests of the crofting community and the public
at large and would contribute to sustainable development. In these circumstances, in the
event of an objection based on detriment, the respondents are entitled to assess that matter
before the application proceeds further. If Parliament had intended that all applications
were to be dealt with by carrying out the balancing exercise, which is anticipated by the list
of factors in section 58A(7), there would have been no need to introduce, in the same
amending legislation, section 50B(2).
[63] Although there is no ambiguity in the legislation, had here been any doubt, the
ministerial statements (supra) make it clear that the absence of detriment to the landowner is
a necessary condition for approval. In particular, at Stage 2 of the passage of the relative
Bill, it was made clear that the new provision was not a “backdoor route to crofting
community control over the owner’s interests in common grazings”. The provision, it was
specifically said, could not be used to build wind farms on grazings, if the landowner
objected. Yet that is precisely what is contemplated in the appellants’ applications. The
ministerial statements at Stage 3 were in similar terms; explaining “why new uses of
common grazings would be unlikely to involve physical development” and that any new
use must not be detrimental to the interests of the landowner.
[64] The existence of detriment is not something which goes to the formal validity of the
application. That validity will depend upon whether, at the date when it is lodged with the
respondents, an application is in proper form. There was nothing wrong with the
appellants’ applications in terms of their validity at the time when they were submitted.
They simply failed because the landowner demonstrated detriment. The answer to
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question 1 may therefore strictly be in the negative, but that is qualified by repeating that,
where an objection based on detriment is received, the respondents are entitled to determine
that as a preliminary issue and to refuse to approve the application, if that detriment is
established. The answer to question 2 is also in the negative. Proceeding to consider the
listed factors under section 58A(7), once a finding of detriment is made, could serve no
useful purpose. It follows that the court agrees with the Land Court that the respondents
did not err in any respect in the procedure which they adopted.
Questions 3 and 5
[65] Whether a proposal constitutes a detriment to the interests of a landowner is a matter
of fact which is primarily for the respondents to determine. This court cannot interfere with
a decision of fact, particularly one made by a specialist tribunal such as the respondents,
unless it can be demonstrated that the tribunal has erred, not in its assessment of fact, but in
law. An error of law occurs when:
“the tribunal of original jurisdiction has either misdirected itself in law, entertained
the wrong issue, or proceeded upon a misapprehension or misconstruction of the
evidence, or taken into account matters which were irrelevant to its decision, or has
reached a decision so extravagant that no reasonable tribunal properly directing
itself on the law could have arrived at… It is of no consequence that the appellate…
tribunal or court would itself have reached a different conclusion on the evidence. If
there is evidence to support the decision of the tribunal of first instance then in the
absence of a misdirection in law… that is an end of the matter” (Melon v Hector Powe
1980 SC 188, LP (Emslie) at 198).
[66] The material before the respondents demonstrated that the interested parties’ scheme
was one which involved some 36 turbines at locations which included the 21 on the
appellants’ common grazings. The interested parties had spent some considerable time in
advancing this scheme, including entering into contracts (notably a lease) with third parties,
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applying for planning permission and making an application for a section 19A consent
relative to the grazings. In the event of obtaining the relevant permission and consent, the
interested parties would have the ability to construct a wind farm which they might
anticipate would generate significant electricity and, in all probability, a substantial profit, at
least if the inter-connector is ever built across the Minch. The respondents have, therefore, a
real and substantial commercial development in prospect. This is an “interest” for the
purposes of section 50B(2) of the 1993 Act. Question 3 falls to be answered in the
affirmative.
[67] The respondents held that implementation of the appellants’ proposals “would make
more difficult, and could prevent, the implementation of the landlord’s own preferred …
development”. As the Land Court put it, and as may seem obvious, the interested parties’
scheme and the appellants’ proposals cannot both go ahead simultaneously. If the
appellants’ proposals, or one or other of them, were to be approved, that would be relevant,
in the sense of being detrimental, to the interested parties’ section 19A application for
consent. The fact, that the appellants have offered to abide by conditions to be attached to
any approval of their proposals, does not detract from the detriment to be attached to them
in that, if they were implemented, the interested parties’ larger scheme would be seriously
jeopardised. Although financial offers may have been made by the appellants, their
effectiveness would depend on a number of variables. They could not be effectively
guaranteed. The reality would be that the blocking of the larger scheme would remove from
the interested parties the ability to control their own development. In these circumstances,
the respondents were entitled to conclude that such an impediment to the implementation of
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31
the larger scheme would be detrimental to the interests of the landowner. No error of law is
identifiable.
[68] Although the issue was raised only in the Aignish application, it is difficult to
conceive how the construction of large physical structures on the common grazings could
not be to the detriment of the landowner’s interest in circumstances in which he has no
control over their operation. Returning to the ministerial statements, it was not anticipated
that section 50B purposes would be likely to involve “physical development”; yet that is
what is contemplated in the appellants’ applications. The statements contemplated
detriment as a result of the “need for remediation”. It is of no moment that the respondents
did not cover this matter in the non-Aignish proposals, given the principal reason for refusal
of approval. Similarly, in the context of this objection, it matters little whether the proposal
is for one or two turbines. These are very substantial physical structures.
[69] As has been emphasised already, the landowners are the persons who have title to
the land and, subject to the protection of the crofters’ interest in common grazing and the
necessity now of a section 19A consent, they have the principal right to decide how the land
should be used and what structures should be built upon it. The appellants have, under the
Crofting Acts, very little by way of legal right to use the common grazing for non-
agricultural purposes. This is so albeit that they may propose such purposes and, if they do
not involve detriment, may have them approved. There was no significant dispute about
the information presented to the respondents concerning the parties’ respective scheme and
proposals. On the basis of that material, the respondents were entitled to find detriment
established. It would only be on the basis that there was no material upon which that
finding could have been made that the court could intervene. No “evidence” in the pure
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32
sense is needed. Question 5 is answered in the affirmative, except in so far as it refers to the
applications being “invalid”.
Question 4
[70] The respondents are entitled to receive late objections in terms of section 58A(5A), if
they consider that there is “a good reason why the objection is late. The determination of
whether there is a good reason is a matter for the exercise of a discretionary judgment by the
first instance tribunal. Interference by a court in such a decision is only merited upon the
restricted grounds of:
“a material error of law going to the root of the question for determination…,
[taking] into account irrelevant consideration or [failing] to take account of relevant
and material considerations… no proper basis in fact to support it…[or] it…is so
unreasonable that no reasonable [tribunal] could have reached…it” (Wordie Property
Co v Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 347).
[71] The grounds advanced fall far short of meeting this test. There is no reason to
suppose that the respondents were unaware of the need to find good reason for allowing the
late objections. There is no basis for the appellants’ contention that the respondents had not
considered the impact on the appellants. The respondents accepted that they themselves
had led the interested parties into thinking that they need not lodge objections as they had
considered (perhaps wrongly) that no valid applications had yet been made. Irrespective of
what other reasons for allowing the objections late may have been, and what grounds for
refusing to do so were proffered, the respondents’ actings amply justified the exercise of a
discretion to allow the objections to be heard.
[72] The frustrations of the appellants, in relation to the respondents’ inability to progress
the applications expeditiously, is understandable and was highlighted by the Land Court.
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33
Nevertheless, as the Land Court held, in so far as it was necessary for the respondents to
consider the merits of the applications, the interested parties gained no significant
advantage and the appellants suffered no material disadvantage on the merits as a result of
allowing the objections to be lodged late. The facts for determination remained unchanged.
It would have been indeed surprising if the respondents had declined to hear all parties
with an interest in these merits and even more so when they were aware that the interested
parties had intended to intervene and object at some appropriate point. Question 4 is
answered in the affirmative.
Postcript
[73] As a postscript, it could be said that this case does identify general concerns about
the development of what might be underused croft land, including common grazing. The
needs of the crofting communities are not identical to those in the late Victorian era. As with
other applications to the respondents, it could be left to them to decide upon the
appropriateness of the development, having regard to everyone’s interests, in terms of the
factors in section 58A(7) of the 1993 Act. That is not permitted under the current legislation.
Such a legislative development would require section 50B(2)(b) to be repealed. Since the
landowners’ property rights would almost inevitably be interfered with by the
superimposition of an alternative development, the need, in terms of Article 1 Protocol 1 to
the European Convention (the right to peaceful enjoyment of possessions), for the
incorporation in any amending legislation of a scheme for compensating the landowner for
any loss would become apparent.
[74] The questions are answered as follows:
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34
1.
Strictly, no. Section 50B(2) is not about the validity of an application.
However, where an objection based on detriment is received, the respondents are entitled to
determine that matter as a preliminary issue and to refuse to approve an application, if that
detriment is established;
2.
No. Proceeding to consider the listed factors under section 58A(7), once a
finding of detriment is made, would serve no useful purpose. The respondents did not err
in the procedure which they adopted;
3.
Yes.
4.
Yes.
5.
Yes, except in so far as it refers to the applications being “invalid”.