Petition for Judicial Review in which Trump International sought to challenge the Scottish Government’s decision to grant consent for an offshore wind farm near its golf resort at Menie in Aberdeenshire. There were two main challenges to the decision.

Section 36 of the Electricity Act 1989
Trump argued that the Scottish Government should not have granted consent in terms of s36 of the Electricity Act 1989 as the wind farm developer did not hold a licence to generate electricity. Trump founded on the decision in Sustainable Shetland v The Scottish Ministers[1] in which Lady Clark found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity. In the Outer House Lord Doherty disagreed with the interpretation taken in Sustainable Shetland, rejected that argument and dismissed Trump’s petition. The Inner House refused an appeal finding that the entitlement to apply for a section 36 consent is not limited to developers who already hold (or are exempt from holding) a licence to generate electricity and that, where an applicant under section 36 obtains consent, it will require to obtain a licence or an exemption before it can generate electricity at the wind farm.

The Supreme Court have again rejected Trump’s arguments in that regard finding that its proposed interpretation was not supported by the structure and language of the 1989 Act. It also found that there was nothing in the policy behind the 1989 Act requiring the Court to take a different view of the statutory provisions. In coming to this conclusion the court noted, amongst other things, that it was not a necessary part of the policy that the persons who built electricity generating stations would also be the persons responsible for generating the electricity and that it has become established practice for organisations to seek s36 consents before applying for a licence to generate electricity.

Condition 14 of the consent
Trump also argued that condition 14 of the consent granted by the Scottish Government, which provides for the submission and approval of a design statement before the development could begin, was void for uncertainty. However, the Supreme Court found that, even if that condition had been unenforceable, the consent would not have been invalidated as it was found not to be a fundamental condition determining the scope and nature of the development (this also being covered by other aspects of the consent). Further, the court noted that a planning condition can only be said to be void if it can be given no sensible or ascertainable meaning and found that that was not the case with condition 14.

As such, Trump’s appeal was dismissed.

The full judgement is available from the Supreme Court here.

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[1] [2013] CSOH 158