Trump International Golf Club Scotland Ltd and the Trump Organisation LLC v. The Scottish Ministers and Aberdeen Offshore Windfarm Development Limited, 17 October 2013 – Trump International adopts Sustainable Shetland’s Wind Farm competency argument

Outer House decision concerning Trump International’s challenge to the Scottish Government’s decision to grant permission for an offshore wind farm near its golf resort at Menie in Aberdeenshire. (My blog on some of the issues surrounding the golf resort can be seen here.)

Following the recent decision in Sustainable Shetland v The Scottish Ministers in which Lady Clark came to the conclusion that it was not competent to grant planning permission for a wind farm to persons who were not licence holders or exempt persons[1] under the Electricity Act 1989, Trump International lodged a minute of amendment seeking to add the argument made by Sustainable Shetland (referred to as the “competency question”) to their pleadings. They also sought to have the competency question dealt with before the other issues in the case and referred to the Inner House.

Lord Woolman allowed Trump international to amend their pleadings[2] to include the competency question but, having regard to the potential consequences and effect it might have on the overall delay, refused the motion to detach the competency question from the other issues in the case.

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] I.e. exempt from the requirement (under s4 of 1989 Act) to obtain a licence before generating, transmitting, distributing or supplying electricity.

[2] This was not opposed by the Scottish Ministers.

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Big enough to Trump the law?

Back in Victorian times, when our railways were booming, something was needed to line the side of our many and burgeoning miles of track. The well intentioned Victorians looked to a solution from abroad. Fallopia japonica grows and covers the ground extremely quickly, is capable of tolerating a very wide range of soil types and is extremely hardy.  Unfortunately, and with the benefit of hindsight, we now know to our cost that the introduction of Japanese Knotweed (to use its common English name) was a mistake. In its native Asia, it is kept in check by fungus and insects. However, in the UK, those Asian species do not exist and the Knotweed’s expansion can continue unchecked.  Not only does it strangle and suffocate our native flora, it grows through walls, tarmac and concrete damaging property and buildings and reducing its value.  Without its natural controls, standard weed killers are hopelessly inadequate and Knotweed takes over its environment leading to it now being listed as one of the world’s 100 most invasive species.

When Donald Trump first announced his plans to build a golf course at Menie, I can only imagine the politicians’ eyes lighting up at the prospect of such substantial potential inward investment in Scotland. The then First Minister Jack McConnell immediately pushed for Trump to become a Global Scot and Alex Salmond, both as the local MSP and also the succeeding First Minister, continued to “court” Mr Trump.   This is not surprising. The politicians would not be doing their job if they did not encourage investment in our country. And billionaire, Donald Trump certainly had the potential to do a lot of good for the financial well being of the area. However, after watching Antony Baxter’s “You’ve been Trumped!” documentary, I, like many others, am beginning to wonder whether that investment may have come at too great a cost.  It appears that Mr Trump is not a man who likes to be told “no” nor put up with anything in a way other than the way he personally wants it. As Mr Trump’s demands increase, and his dissatisfaction with the extent to which the Scottish Government is prepared to continue rolling the red carpet out for him and enforce planning requirements to comply with his desires[1], I suspect that the politicians too may be starting to wonder just what has been unleashed on our country.

I should mention early on that my purpose here is not to question the merits of the decision to grant planning permission for Mr Trump’s golf course.  Although I don’t pretend to know the Menie area well, a development on the scale of Mr Trump’s scheme on a Site of Special Scientific Interest must bring with it considerable benefits to justify the environmental and other costs. However, on the face of it, the Trump plans have enormous potential to benefit the area and, in any event, that decision has now been taken. All major developments have winners and losers.  Recent examples of the difficult balancing act involved in such decisions can be seen from proposed developments such as the Aberdeen Bypass, the Forth replacement crossing, the Borders railway project and the new Portobello High School.  Our planning system is there to ensure that, where there are losers, the greater good justifies any detriment suffered by individuals.

Where there are losers, their loss (whether it is the loss of their property or the loss of amenity value in that property) can, on a personal level, be considerable.  It is important that such people are treated fairly. Watching the documentary, the most striking thing for me is the treatment of those losing out.  Property disputes (especially boundary disputes) are perhaps second only to matrimonial disputes in terms of the acrimony and vitriol they cause. It is not surprising when disputes become inflamed.  However, in this case, in terms of resources available to the protagonists, I‘ve never seen such a one sided dispute. David and Goliath does not do it justice.  Resources should not determine a property dispute but in this case there are worrying signs that Mr Trump’s vast wealth and consequent power and influence have been able to subvert the law. This, for me, is the most worrying aspect of the case.

The documentary highlights a number of disputes between Trump International Golf Links and its neighbours.  Andy Wightman spoke very well on the issues in the documentary and has written an excellent report on the controversy surrounding the golf course here.

The attitude of the company towards the boundary disputes is particularly concerning to me.  I felt very sorry for Mr Forbes as he waved his title deeds in futility at the police while Trump International’s diggers moved in to move his fishing nets and drying equipment from land they claimed belonged to them.  The police, however, were unable to help him. It was a civil dispute and they could not intervene. This is true and I would not expect the police to do or say anything else. But I would also not have expected the police to have been there in the first place.   In a letter to Andy Wightman from Grampian Police[2] it is explained that the police were there in response to a call stating that protestors were present. There were no protestors and the police just happened to be present when Trump International’s diggers moved in.

A few weeks earlier Mr Forbes had taken some unilateral action of his own. Trump International had placed some wire marker flags indicating their interpretation of boundary between the properties. Mr Forbes, believing them to be on his property, removed the markers and placed them in a pile. When the police arrived to investigate, Mr Forbes showed them the pile and said that Trump International were welcome to recover them. In this situation the police did feel able to act. Mr Forbes was charged with theft (although the charges were later dropped). Now I’m not convinced that this was theft[3], but I wonder if Grampian Police also considered charging Trump International with the same crime in respect of the removal of the fishing nets a few weeks later.

The boundary dispute with the Milnes was similarly one sided. Trump International’s lawyers wrote to the Milnes stating that their clients advised that a fence and part of a shed was on their land. In the letter they offer no justification for their client’s views but merely demand removal (of what appears in the film to be more garage than shed) within 72 hours under threat of court action. Perhaps the Milnes should be glad Trump International did not just move in and demolish the garage. However, demanding demolition of the garage without justification seems to suggest complete contempt for any need to investigate the correct legal position. They also advise that their clients will re-erect the fence “along the legal boundary” of the property. For which we should probably read: ‘along our client’s interpretation of the boundary’. I’m not sure whether court action ever took place about the garage but Trump International did reposition the fence where they saw fit (cutting off the Milne’s electricity in the process) and then issued the Milnes with a bill for nearly £3k. As it turns out, Trump International’s interpretation of these boundaries appear to be somewhat dubious[4].

In both of these cases Trump International’s approach was to act to enforce its own interpretation of the boundaries with neither dialogue nor even the offering of legal justifications for its actions to its neighbours. This is dangerous. If we were all to act in this way, the country would quickly descend into chaos. Disputes would escalate, tempers would become inflamed and we run the risk that the situation would degenerate into some sort of civilian trench warfare. Why then does Trump International feel able to act in this way?  Usually, it is inadvisable for a potential protagonist in a boundary dispute simply to act on his or her own inclinations because:

  1. their inclinations might be wrong and lead to an expensive damages claim from the neighbours;
  2. acting unilaterally will inflame the situation and potentially destroy any relationship they have with the neighbour; and
  3. there is nothing to stop the neighbours doing exactly the same and reversing whatever the other party has done leading to… nothing other than unnecessary expense on both sides as they both act unilaterally ad infinitum.

If an amicable solution to a boundary dispute cannot be found, you would expect one party’s lawyer to write to the other party or their lawyers advising them of their clients concerns and the legal justification for those concerns. The opposing party or their lawyer will put forward their argument, then, either agreement will be reached based on the relative strength of the opposing legal arguments, or the parties will go to court to contest those arguments. Trump International’s lawyers simply wrote to the neighbours advising them of their client’s thoughts on the position and telling them of their client’s intended unilateral action based on those opinions. When you act for Trump International it very much appears that the law (or anyone else’s interpretation of it) is irrelevant.

Why were they able to do this? Let’s face it, (1), (2), and (3) are of little or no concern to you if you have the resources of Trump International (and its apparent contempt for its neighbours). Of course, in the normal world, when one party is busy taking their unilateral action, the other party may be busy taking unilateral action of its own and undoing all that the first party is doing. This has the potential to lead to frustration and an escalation of the dispute.  In this case, even if they were prepared to go tit-for-tat with the might of Trump International and its security force, (and this is where it gets sinister) there was a further deterrent. It appeared to Trump International’s neighbours that Grampian Police had begun acting on behalf of Trump International. The Police of course deny acting in a partial manner but, where they have chosen to turn up and take action, it invariably seems to have been to the benefit of Trump International.

One of the most disturbing incidents in the documentary is the police arrest of Antony Baxter and Richard Phinney. The film makers had gone to put questions to Trump International after reports that the company had cut off water to its neighbours (including an 85 year old lady) with no indication as to when it would be reconnected. Following some discussion with the green keeper at the estate office they left and went to the house of one of Trump International’s neighbours to conduct another interview. During the interview, the police arrived, told the film makers to stop filming. When asked why, one of the officers physically restrained Mr Baxter, forced him to drop the camera, handcuffed him and put him into the back of the police car. Mr Phinney was also asked to get in the car and the pair were advised that they were being detained under s14 of the Criminal Procedure (Scotland) Act 1995[5].  They were detained at the police station for 4 hours and charged with committing a breach of the peace, Grampian Police having received a report (it seems to have come from the green keeper interviewed) that a breach of the peace had occurred at the estate office. Section 14 allows detention where the police have “reasonable grounds for suspecting that the person has committed an offence”. That is all very well but, as I write this, my neighbour’s music is causing Jurassic Park style ripples in my coffee and rendering the ringer on my phone all but inaudible. I may nip down and ask him to drop the volume a notch. I would hope not to be cuffed and bundled off to St Leonards Police Station shortly afterwards if he complains about my visit. But would that be a legitimate concern if he takes exception to my request and turns out to be wealthy and influential?

Police presence and intervention or not, the legal solution here is that Trump International’s neighbours could of course take court action themselves. Commencing legal action against such a formidable opponent with such vast resources does take considerable courage but, if the position were legally correct, one would expect the courts to enforce it.  The problem is that Trump International can afford to gamble as, to a company of that size, there are no damaging repercussions if it were to lose (what to the company is) a small scale court case.  In this situation there is therefore little or no deterrent to unilateral action on a whim.  It makes me wonder whether this is an area we should be looking at further. Should there be more in the way of a legal deterrent to such unilateral action?

The planning system is treated in much the same way by Trump International as its neighbours. When it was refused planning permission (by Aberdeenshire Council), Trump International choose neither to resubmit it’s application nor follow the appeal process. It merely threatened to walk away. (Although, as fortune would have it, somewhat unusually, the Scottish Government decided to call in the application before a decision letter was issued).  The company’s attitude appears to be that it does not negotiate or compromise. Its proposals are on a ‘take it or leave it’ basis. Which is fine but, where ‘taking it’ involves bending or breaching laws, the situation becomes dangerous.

Unsurprisingly, the company also appears to have paid little attention to the planning permission it did obtain. Where Donald Trump decided he not want to see his neighbours houses, large mounds of earth were constructed around them without planning permission. As Mr Trump says in the documentary: “You know what? Who cares? It’s our property. We can do what we like with it.”

Whether it is boundary lines, planning consents or breaches of the peace, the recurring theme here appears to be that what Mr Trump and Trump International say tends to be accepted without question to such an extent that they and those acting for them no longer feel the need to offer justification for their assertions.

At every turn, if he doesn’t get exactly what he wants, Donald Trump says he will take his money and go else where.  However, we should remember Mr Trump is not acting from purely altruistic motives here. He is doing this to make more money (and possibly also to further enhance his own ego). However, even  if it were a purely philanthropic act and Mr Trump’s golf development was the best thing that could happen to Scotland, he can not be allowed to trample all over our laws and our people in order to make it happen.  The damage caused by allowing him to do that is much greater than just the financial damage caused if he did stop and go elsewhere.  When the original planning application was first refused by Aberdeenshire Council, George Sorial, the Trump Organisation’s Director of International Development was asked what sort of message it sent out to the rest of the world.  He said that it sent out “a devastating message: that if you want to do big business, don’t do it in the north-east of Scotland.”

However, we should also consider the dangers of the alternative. What sort of message does it send out to the rest of the world if we allow big business to side-step our laws and procedures? You can do what you like, when you like, to whomever you like so long as you have enough money?

There are not many people with the perceived wealth and power of Donald Trump. However, there are many who share his aspirations and, were we to send out this message, we may find that we have a rapid expansion of inward investment. Unfortunately, we may also find that it strangles and suffocates those it comes into contact with. Even worse, we may also find that it undermines, damages and devalues our laws, procedures and the institutions that enforce them.

Scotland has a proud tradition in treating people equally. Whether ‘we are all Jock Tamson’s bairns’ or ‘a man’s a man for a’ that’, the principle is that the ‘wee man’ has as much right to protection of his interests and property as the ‘big man’.  The documentary “You’ve been Trumped!” may only be one side of the story but the events on the Menie estate raise a number of questions as to the adequacy of our law, our procedures and the enforcing institutions in protecting the principle of equality. It is time for these questions to be looked at and, more importantly, answered.

[1] See Mr Trump’s threats to abandon plans to build the hotel at the Golf course if an offshore windfarm is granted planning permission and claims that he had received assurances from Alex Salmond that the wind farm would not be built prior to commencing the project.

[2] See Andy Wightman’s report at p14.

[3] Theft is defined (See Jones & Christie, Criminal Law at p20) as the appropriation of the property of another person in the knowledge that the property belongs to another person either temporarily for a nefarious purpose, or permanently.

[4] Again, see Andy Wightman’s report at p20.

[5] Under this section a police constable can detain a person where he has reasonable grounds for suspecting that the person has committed an offence (punishable by imprisonment) for the purpose of facilitating the investigations into the offence.

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