Terra Firma member Luise Locke successfully represented a farmer in three appeals against the decision of the Scottish Ministers under the Land Reform (Scotland) Act 2003 to register a community interest in three areas of land at Kinghorn Loch, Kinghorn, Fife.  The central issue was whether the three applications by the community were incompetent as they did not comply with the Community right to Buy (Specification of a Plan) (Scotland) Regulations 2004, through failure to include OS grid references.  Sheriff MacNair held that this omission was fatal to the applications.

Further, the Ministers in reaching their decision, failed to distinguish which of the tests set out at section 38 (1)(b) subsections (i) or (ii) they had applied, and therefore failed to reach a conclusion as to the achievability of the community’s aspirations regarding sustainable development.  It was insufficient for the Ministers to decide that if the community aspirations were achieved they would be compatible with sustainable development and to defer the actual question of compatibility to be decided later at the point of purchase.

In respect of one of the applications by the community to which the farmer had objected on the grounds that red and grey squirrels could not integrate successfully in the long term, providing factual information on this point, it was held that the Ministers had acted unreasonably by failing to reject that evidence if they had a basis so to do.  By proceeding simply to ignore it in their decision making process the Ministers had failed to take into account the full terms of the farmer’s objections.

Sheriff MacNair indicated that in all circumstances had the applications been competent he would have sustained all three appeals.  The submission by the Ministers that if the appeals were successful on the merits, then the applications should be remitted to the Ministers for further consideration, was rejected as incompetent.  Sheriff MacNair understood that his sole option was to sustain the appeals and quash the decisions.

It was further submitted by the Ministers that there should be imposed conditions under Section 61(7)(b) in order to maintain the status quo pending fresh applications by the community.  Sheriff MacNair rejected that submission in light of his view that the applications should never have been accepted by the Ministers.  The Keeper of the Registers is required to delete the community interest registered in respect of the three areas.

Sheriff MacNair’s judgement was issued at Kirkcaldy on 16th March 2009.