Sustainable Shetland v The Scottish Ministers and Viking Energy Partnership for Judicial Review of a decision of The Scottish Ministers dated 4th April 2012, 3 December 2013 –whether parties can intervene in judicial review proceedings

Inner House case considering whether additional parties (including the Trump Organisation) could intervene in the case of Sustainable Shetland v The Scottish Ministers which concerned the Scottish Government’s decision to grant planning permission for a wind farm on Shetland.

In the Outer House Lady Clark had, in essence, found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity (this finding has become known as “the competency question”). As was noted by the Inner House, the competency question has caused a “degree of consternation” amongst wind farm developers.

The Scottish Minister’s sought to appeal the decision of the Outer House. However, although they have indicated that they wish to maintain environmental arguments, Sustainable Shetland have indicated that they do not wish to maintain an argument based on the competency question.

A variety of parties including the Trump Organisation[1], various wind farm developers and the RSPB then sought to intervene in the proceedings in terms of Rules of Court 58.8(2) (which allows parties directly affected by any issues raised in proceeding to intervene) and 58.8A (which allows parties to intervene in order to raise an issue of public interest).

Rule 58.8(2) – parties directly affected
The Inner house found that Trump and the other wind farm developers could not be said to be directly affected by the issues raised in the proceedings:

 “As a general rule, if a public law decision is challenged, for whatever reason, the range of persons able to enter the process remains limited to those who can show an interest in the outcome of the case; that is to say not in the potential legal reasoning employed by the court in reaching a decision, but in the decision itself. Neither Trump nor AES K2 and the related companies have any interest in the outcome of whether the Shetland windfarm goes ahead.”

Rule 58.8A – issues of public interest
Trump’s application under rule 58.8A also failed. They were not advancing a public interest point. The point which they sought to make was one intended as a protection of their private interests in the marketing of their Menie development.

The Outer House also rejected the RSPB’s application under rule 58.8A noting that, although they had interest in the bird life on the wind farm, they had had the opportunity to intervene in the Outer house proceedings and chose not to do so. Consequently, the Inner House did not consider it appropriate to allow the RSPB to enter the process at the appellate stage under the guise of a public interest intervention. Further, given the positions of Sustainable Shetland and the Scottish Ministers, the court did not consider that any propositions advanced by the RSPB would be likely to assist the court.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

[1] Which is judicially reviewing the Scottish Ministers’ decision to grant permission for an offshore wind farm near its golf resort at Menie  (see here) and, after Lady Clark’s decision in Sustainable Shetland  (a summary of which is available here) , added the competency question to its pleadings.

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