In Trump International Golf Club Scotland Limited & Anr v The Scottish Ministers [2015] UKSC 74; [2015] PLSCS 362, the Supreme Court held that the granting of a consent under section 36 of the Electricity Act 1989 for the construction of an electricity generating station was not restricted to holders of a electricity generation licence or persons exempted from holding such a licence.
The Supreme Court so held in dismissing an appeal by the petitioners, Trump International Golf Club Scotland Ltd and the Trump Organization LLC, against the decision of the Inner House of the Court of Session.
Developers of the planned European Offshore Wind Deployment Centre (“EOWDC”) applied to the Scottish Government for consent to construct and operate the project in 2011, under section 36 of the 1989 Electricity Act. This was granted in March 2013, subject to conditions. Once built, EOWDC will consist of up to 11 wind turbines with a maximum power generation of 100MW, located about 3.5km from Trump International Golf Club at Menie Estate.
Trump’s company had unsuccessfully challenged the project on various grounds in the Scottish courts, only two of which remained by the time the case reached the Supreme Court. The two grounds on which the petitioners now sought to have the consent quashed were that (i) the Scottish Ministers had no power under the 1989 Act to grant consent to the wind farm application because only a licence holder under section 6 or an exempt person under section 5 could apply for and be granted a construction consent under section 36; and (ii) condition 14 of the consent (which required the submission and approval of a design statement) was void for uncertainty.
The Supreme Court unanimously dismissed both grounds of challenge. Lord Hodge was satisfied that neither the language of the 1989 Act nor its policy background supported the interpretation which the petitioners advanced on the first ground. As to the second ground, the short answer to that challenge was that if, contrary to his Lordship’s view, condition 14 was unenforceable, the consent would not be invalidated. Important elements of the benefits which condition 14 promoted were contained within the supplementary environmental information statement. The Scottish Ministers could insist on compliance with that document and those principles in the construction of the development. Condition 14 therefore could not be seen as a fundamental condition which determined the scope and nature of a development and which, if invalid, would in turn invalidate the consent. Even if condition 14 could not be enforced so as to require the company to construct the wind farm in accordance with the design statement, the condition would not be void for uncertainty. It would have effect to the extent that the developer would have to produce a design statement and obtain its approval by the Scottish Ministers before it could start the development: see Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, 678.
In a supporting judgment, Lord Carnwath said that there was no principle special to planning conditions which prevented judges from implying additional conditions where justified in accordance with the familiar, albeit restrictive, principles applied to other legal documents. The judgment encourages a broader view, taking account of jurisprudence on interpretation from wider fields. Lord Carnwath also makes the point that things have moved on from the days in which consent conditions were regarded as constraints on landowner freedom, to be strictly construed.
Martha Grekos is a partner and London head of planning and infrastructure at Irwin Mitchell
