Trump International Golf Club Scotland Ltd+the Trump Organisation Llc V. The Scottish Ministers+aberdeen Offshore Windfarm Development Limited
| Jurisdiction | Scotland |
| Judge | Lord Woolman |
| Neutral Citation | [2013] CSOH 166 |
| Court | Court of Session |
| Published date | 18 October 2013 |
| Year | 2013 |
| Date | 17 October 2013 |
| Docket Number | P480/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 166 | |
| P480/13 | OPINION OF LORD WOOLMAN in the Petition of TRUMP INTERNATIONAL GOLF CLUB SCOTLAND LTD and THE TRUMP ORGANISATION LLC Petitioners; against THE SCOTTISH MINISTERS Respondents; And ABERDEEN OFFSHORE WINDFARM DEVELOPMENT LIMITED Interested Party: ________________ |
Petitioners: Steele QC, Burnet; Dundas & Wilson CS
Respondents: Mure QC; The Scottish Ministers
Armstrong QC; Shepherd & Wedderburn
17 October 2013
Introduction
[1] This case concerns a proposed windfarm in Aberdeen Bay ("the windfarm"). On 1 August 2011, Aberdeen Offshore Windfarm Development Ltd ("the interested party") applied to the Scottish Ministers for consent to construct and operate the windfarm. Such consent is required in terms of section 36 of the Electricity Act 1989 ("the 1989 Act"). On 26 March 2013, the Scottish Ministers decided to grant consent, subject to certain conditions ("the decision"). They made the decision without holding a public enquiry.
[2] The petitioners own a golf course and resort at Balmedie Aberdeen. It is about 2km from the site of the proposed windfarm. The petitioners believe that if that development proceeds, it would have an adverse effect on their business operations. They sent various letters of objection to the Scottish Ministers before they reached the decision. The matter has attracted widespread public interest.
[3] After the decision was made, the petitioners lodged the present petition for judicial review. As originally framed, they contended that the decision was unlawful. The grounds of review are set out in great detail. For present purposes, it is enough to give their headings: "Breach of Natural Justice/Pre-determination/Bias", "Failure to Hold a Public Inquiry", "Contravention of ECHR" and "Material Considerations" (which I understand to mean a failure to properly evaluate the project).
Procedure
[4] The court granted first orders on 17 May 2013 and allocated four days for a first hearing, which is scheduled to begin on 12 November 2013. The court also fixed a timetable leading to that hearing. Draft arguments and productions are due to be lodged on 21 October, final arguments on 31 October, and the reading list, together with authorities, on 7 November.
[5] The petitioners now seek to discharge the first hearing. At the same time, they invite me to report one discrete issue to the Inner House for decision. That issue is the proper construction of section 36 and schedule 9 of the 1989 Act. The matter arises in the following way.
The Decision in Sustainable Shetland
[6] On 24 September 2013 Lady Clark of Calton issued an opinion in Sustainable Shetland [2013] CSOH 158. That petition also involved a challenge to a decision of the Scottish Ministers. There, they consented to the construction and operation of a windfarm on mainland Shetland. A number of issues were canvassed in the course of the proceedings before Lady Clark, including matters arising out of the Wild Birds Directive 2009. During the hearing, it emerged that the applicant did not have a licence or exemption under the 1989 Act. The question then arose as to whether the Scottish Ministers could properly grant consent to a non-licence holder. Lady Clark referred to this as the "competency" point. I shall use the same term in the course of this opinion.
[7] After a detailed analysis of the statutory provisions, Lady Clark held that on a proper construction of the 1989 Act, only a licence holder could make an application. Accordingly the Scottish Ministers had been wrong to grant consent to the applicant: paragraphs [113] to [115] of her opinion. She also indicated that she would have preferred to deal with the competency question as a preliminary matter: see paragraphs [47], [114] and [299].
[8] The Scottish Ministers have reclaimed the decision in Sustainable Shetland. On 15 October 2013 the case came before the Inner House on a motion for urgent disposal. Lord Menzies reserved a six day diet on the Summar Roll, commencing on 27 February 2014. He allocated three days each to the competency question and to the issues arising under the Wild Birds Directive 2009. Counsel for Sustainable Shetland informed the court that it had limited funding. Accordingly, it only intended to address the court in relation to the Directive and not in respect of the competency point. I understand that some discussion then took place about the absence of a contradictor on this important matter. Lord Menzies fixed a By Order hearing to take place on 20 November 2013.
Minute of Amendment and Motion
[9] A matter of days after Lady Clark issued her decision, the present petitioners lodged a minute of amendment in which they sought to add the competency point that had succeeded in Sustainable Shetland. Both the other parties lodged answers. They maintain that on a proper construction of the 1989 Act, applicants for consent under section 36 do not require to be licence holders.
[10] In their answers, the Scottish Ministers go further. They now contend that, even if their argument on competency is wrong, the court should exercise its discretion and refuse to reduce the decision. They found upon seven reasons in this connection, which can be summarised as follows:
a. The purpose of the relevant provisions of the 1989 Act is to encourage the preservation of amenity and fisheries in Scotland. Both the Scottish Ministers and the interested party paid due regard to the requirements of the legislation.
b. The absence of a licence has caused no prejudice to the petitioners.
c. The interested party provided the environmental materials to comply with the legislation.
d. The public interest does not favour the grant of reduction.
e. The petitioners unduly delayed in taking this point.
f. No purpose would be served by re-running the whole application process.
g. The interested party will require to obtain either a licence or an exemption in order to generate electricity at the windfarm.
[11] On 14 October 2013, the petitioners enrolled the following motion:
"(1) For the petition and answers to be amended in terms of the minute of amendment and answers ......
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