Trump loses UKSC appeal over offshore wind farm near golf resort
Tycoon Donald Trump has lost an appeal to the UK Supreme Court over the granting of consent to develop an offshore wind farm near to his golf resort at Menie Estate, Aberdeenshire.
Five Justices unanimously dismissed the appeal by Trump International Golf Club Scotland Ltd against the decision by the Inner House that the Scottish Ministers had granted a valid consent to Aberdeen Offshore Wind Farm Ltd under s 36 of the Electricity Act 1989 to construct and operate the European Offshore Wind Deployment Centre in Aberdeen Bay.
The company objected because the proposed windfarm, comprising up to 11 wind turbines, would be located about 3.5km from the golf resort and would be seen by people at the resort.
Before the Supreme Court it argued (a) that ministers had no power under the 1989 Act to grant consent to the application as only the holder of a licence to generate, transmit, or supply electricity granted under s 6, or a person exempted under s 5 from holding such a licence might apply under s 36; and (b) that condition 14 of the consent, which required the submission and approval of a design statement, was void for uncertainty.
President Lord Neuberger, Lord Mance, Lord Reed, Lord Carnwath and Lord Hodge agreed that the appeal failed. Delivering the leading judgment, Lord Hodge said that the s 36 argument was not supported by the structure and language of the 1989 Act, nor was there anything in the policy background to the Act which required the court to take a different view.
As regards policy, the Act aimed to liberalise the British electricity market, and it was not a necessary part of the policy that the persons who built generating stations would also be the persons generating the electricity; it contained separate regulatory regimes for the construction of generation stations and overhead lines, and for the licensing of electricity supply, including generation, which now had separate regulators in Scotland; there was no regulatory gap in relation to environmental duties, as ministers had a duty when considering a s 36 application to have regard to environmental matters, and wide powers to impose conditions; there was no need to require an applicant to hold in advance a generating licence or exemption, as ministers might under s 36(5) include appropriate conditions in a consent; and it was established practice in both British jurisdictions for commercial organisations to apply for and obtain s 36 consents before seeking a licence to generate electricity, or an exemption.
Regarding condition 14, the short answer to this challenge was that, even if the condition were unenforceable, the consent would not be invalidated. There were other conditions regulating the construction and environmental impact of the turbines, and condition 14 was not therefore a fundamental condition determining the scope and nature of the development which, if invalid, would invalidate the consent.
In any event it could not be said that condition 14 could be given no sensible or ascertainable meaning. Construing the conditions as a whole, it was clear that the consent contained a mechanism enabling ministers to use both the construction method statement and the design statement to regulate the design of the windfarm in the interests of environmental protection, and to require compliance with those statements.
Lord Hodge added that the flexibility conferred on ministers in conditions 7 and 13 to modify the way in which the windfarm was constructed and operated did not invalidate those conditions, as ministers were not able to alter the nature of the approved development.
He and other judges commented on the process of interpreting a planning permission, Lord Carnwath stating that it did not differ materially from that appropriate to other legal documents and that there was no reason to exclude implication as a technique of interpretation where this was justified.