Trump International Golf Club Scotland Limited And The Trump Organization Llc Against The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lord President,Lord Malcolm |
| Judgment Date | 05 June 2015 |
| Neutral Citation | [2015] CSIH 46 |
| Court | Court of Session |
| Published date | 05 June 2015 |
| Docket Number | P480/13 |
| Date | 05 June 2015 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2015] CSIH 46
P480/13
Lord President
Lord Menzies
Lord Malcolm
OPINION OF THE LORD PRESIDENT
in the RECLAIMING MOTION
in the Petition of
TRUMP INTERNATIONAL GOLF CLUB SCOTLAND LIMITED AND THE TRUMP ORGANIZATION LLC
Petitioners and reclaimers;
against
THE SCOTTISH MINISTERS
Respondents:
For the petitioners: J D Campbell QC, Findlay; Balfour and Manson
For the respondents: Mure QC, Springham; Scottish Government Legal Directorate
Interested Party - Aberdeen Offshore Wind Farm Limited; Non-Participating Party
5 June 2015
Introduction
[1] This is a reclaiming motion by the petitioners against an interlocutor of Lord Doherty dated 11 February 2014 by which Lord Doherty dismissed a petition for judicial review of a decision of the Scottish Ministers dated 26 March 2013.
The planning application
[2] On 1 August 2011 Aberdeen Offshore Wind Farm Limited (AOWFL) applied for consent under section 36 of the Electricity Act 1989 (the 1989 Act) for the construction and operation of the European Offshore Wind Deployment Centre (EOWDC), a proposed electricity generating centre, in Aberdeen Bay, off the coast of Blackdog, Aberdeenshire. The application related to the construction of up to 11 wind turbines with a maximum power generation of up to 100mw. The application was later amended in accordance with a supplementary environmental information statement.
[3] Between January and March 2010 Scottish Enterprise gave funding to AOWFL of £160,000. Between March 2011 and December 2012 the European Commission gave £1,272,362.34.
The petitioners’ objection
[4] In 2006 the petitioners made a planning application for a development on agricultural land at Menie Links, Balmedie (the Menie Project). The project was for the construction of one or more golf courses and a golf club house; the restoration of a large mansion house and the construction of a hotel and extensive private housing. The project was controversial. It was widely opposed. It was refused by the planning authority.
[5] In December 2008, after a lengthy planning process and an appeal against the refusal of permission, the Scottish Ministers accepted the recommendation of three Reporters who had conducted a public local inquiry into it that the application should be granted on the ground of the national economic importance of the project, particularly in relation to tourism.
[6] Much of the Menie Project has now been developed. The nearest of the proposed wind turbines would be about 3.5kms from it.
[7] From the inception of the EOWDC Project, the petitioners have opposed it on planning, environmental and amenity grounds; and have done so on a consideration of its apprehended financial impact on the petitioners’ development. The petitioners have sent numerous letters of objection and representations to the respondents.
[8] The petitioners’ objection has been pursued in detail on matters of strategic and local planning policy; landscape and seascape impacts; and amenity and economic impacts. The objection has been supported by a team of professionals in the relevant disciplines. The petitioners have pursued the objection with extensive documentation, including photo-montage evidence on the question of visual impact. It is clear from this that the petitioners have fully availed themselves of the right and the opportunity to make their objection. It is also clear that in considering AOWFL’s application the Scottish Ministers and those advising them have been in no doubt as to the nature of the petitioners’ objection and have had before them the substantial body of technical evidence that the petitioners have submitted.
The report on the application
[9] The application was considered by the respondents’ Marine Scotland Licensing Operations Team. Mr Andrew Sutherland of Marine Scotland submitted a report dated 25 March 2013 to the Minister for Energy, Enterprise and Tourism. He recommended that the Minister should not cause a public inquiry to be held into the application and should grant it. Among the annexes to the report there was a draft of a decision letter in the name of Mr Sutherland intimating the granting of consent. The draft was dated 26 March 2013.
The decision
[10] On 26 March 2013 the respondents issued a letter to AOWFL framed in terms of Mr Sutherland’s draft and signed by him. The letter intimated the decision of the respondents (1) not to hold a public inquiry into the proposal; and (2) to consent to the application under section 36 of the 1989 Act, subject to conditions.
[11] Conditions 13 and 14 were in the following terms -
“13 Prior to the Commencement of Development a Construction Method Statement (CMS) must be submitted by the Company to the Scottish Ministers and approved, in writing by Scottish Natural Heritage, Scottish Environment Protection Agency, the Marine and Coastguard Agency, the Planning Authorities, Northern Lighthouse Board, and any such other advisors as may be required at the discretion of the Scottish Ministers. Unless otherwise agreed in writing by the Scottish Ministers, construction of the Development must proceed in accordance with the approved CMS. The CMS must include, but not be limited to, information on the following matters:
- Commencement dates;
- Working methods including the scope, frequency and hours of operations;
- Duration and Phasing Information of key elements of construction, for example turbine structures, foundations, turbine locations, inter-array cabling and land fall cabling;
- Method of installation including techniques and equipment and depth of cable laying and cable landing sites;
- The issue of Dynamic Positioning vessels and safety/guard vessels;
- Pollution prevention measures including contingency plans; and
- Design statement
The CMS must be cross referenced with the Project Environmental Management Plan, the Vessel Management Plan and the Navigational Safety Plan.
Reason: To ensure the appropriate construction management of the Development, taking into account mitigation measures to protect the environment and other users of the marine area.
14 Prior to the commencement of the Development, a detailed Design Statement must be submitted by the Company to the Scottish Ministers for their written approval, after consultation by the Scottish Ministers with SNH, Marine and Coastguard Agency, Northern Lighthouse Board, National Air Traffic Services and any such other advisors as may be required at the discretion of the Scottish Ministers. The Design Statement must provide guiding principles for the deployment of wind turbines. The plan must detail:
(a) Layout location for each phase and each turbine; and
(b) Turbine height, finishes, blade diameter and rotation speed across each phase, rows and individual turbine locations; and
(c) Lighting requirements (navigation and aviation) for each turbine/row, or, as the case may be, phase including any anemometer mast; and
(d) further detailed assessment of visual impacts to inform the detailed layout and design of each location and phase of the deployment centre from selected viewpoints to be agreed with the Scottish Ministers and any other such advisors as may be required at their discretion.
Reason: To set out design principles to mitigate, as far as possible, the visual impact of the turbines.”
[12] The prayer of the petition is for a declarator that the decision is unlawful and for reduction of it. The grounds of challenge that are still maintained are (1) that because the applicant is not a “licence holder or person authorised by an exemption … “ as required by Schedule 3, paragraph 3 of the 1989 Act, the decision to grant consent is incompetent; (2) that in making the decision the respondents acted in breach of natural justice by having pre-determined the issue and by displaying bias in favour of AOWFL; and (3) that condition 14 adjected to the consent is void for uncertainty. The petitioners moved the court to recall the interlocutor of the Lord Ordinary and to quash his decision; or to recall the interlocutor, to quash the decision and to direct the respondents to consider afresh whether to convene a public local inquiry into the application.
Relevant statutory provisions
[13] The Electricity Act 1989 (the 1989 Act) provides inter alia as follows:
“4 - Prohibition on unlicensed supply etc.
(1) A person who-
(a) generates electricity for the purpose of giving a supply to any premises or enabling a supply to be so given … ;
shall be guilty of an offence unless he is authorised to do so by a licence.
(4) In this Part, unless the context otherwise requires-
… 'generate', in relation to electricity, means generate at a relevant place …
(5) In this section-
'relevant place' means a place in Great Britain, in the territorial sea adjacent to Great Britain or in a Renewable Energy Zone; ...
5 - Exemptions from prohibition.
(1) The Secretary of State may by order grant exemption from paragraph (a), (b), (bb), (c), (d) or (e) of section 4(1)
(a) either to a person or to persons of a class;
(b) either generally or to such extent as may be specified in the order; and
(c) either unconditionally or subject to such conditions as may be so specified ...
6 - Licences authorising supply, etc
(1) The Authority may grant any of the following licences-
(a) a licence authorising a person to generate electricity for the purpose of giving a supply to any premises or enabling a supply to be so given (‘a generation licence’) …
(9) In this Part –
‘electricity generator’ means any person who is authorised by a generation licence to generate electricity except where that person is acting otherwise than for purposes connected with the carrying on of activities authorised by the licence …
36 - Consent required for construction etc of generating stations
(1) Subject to subsections (1A) to (2) and (4) below, a generating station shall not be constructed at a relevant...
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