Town and country planning – Wind farm – Consent – Respondents granting consent under section 36 of Electricity Act for construction and operation of wind farm on site close to appellant’s golf resort – Appellant seeking to quash consent – Whether respondents having power to grant section 36 consent to a person who had neither a licence under section 6 nor an exemption under section 5 – Whether condition in consent void for unenforceability or uncertainty – Appeal dismissed
The appellant owned a golf club and resort in Balmedie, Aberdeenshire. In 2013, the respondents granted consent to a developer, under section 36 of the Electricity Act 1989, for the construction and operation of an off-shore wind farm in Aberdeen Bay, comprising 11 wind turbines, possibly of varying sizes, with a maximum power generation of 100MW. The proposed wind farm would be located about 3.5km from the appellant’s golf resort and would be visible by people using the resort; the appellant had objected to the application for consent owing to concerns that the proposed wind farm would materially diminish the amenity of the golf resort.
The appellant challenged the grant of consent on various grounds but was unsuccessful in the courts below: see [2015] CSIH 46. It appealed to the Supreme Court on two grounds.
By its first ground, the appellant contended that the respondents had no power to grant consent under section 36 of the 1989 Act to a person who, being neither the holder of a licence under section 6 to generate, transmit or supply electricity nor or a person exempted under section 5, was not subject to the environmental duties imposed by para 3(1) of Schedule 9 to the 1989 Act. The appellant argued that para 3 of Schedule 9 gave rise to a necessary implication that only licence holders or exempt persons could obtain a section 36 consent. It submitted that the statutory policy was to ensure that only operators who were suitably qualified in the electricity generating industry, as established by the grant of a licence or exemption, would be able to apply for consent to construct an electricity generating station.
The second ground of challenge related to a condition in the consent requiring the submission of a design statement for approval by the respondents. The appellant argued that the condition was invalid, since the failure to state in the condition that the developer had to construct the wind farm in accordance with the design statement meant that there was no mechanism by which the respondents could enforce it; moreover, the condition was uncertain since it contained no indication of what compliance with it would entail.
Held: The appeal was dismissed.
(1) The power to grant a consent under section 36 of the 1989 Act was not limited in the way contended for by the appellant. The structure and language of the 1989 Act did not support any such limitation. The Act contained no express prohibition against constructing a generating station without a licence and section 36 placed no restriction on who could apply for a consent to construct a generating station; nor did any such restriction arise from Schedule 8 to the Act, setting out the procedures to be following when seeking consent or objecting to an application for consent. Para 3 of Schedule 9 to the Act contained no indication, either express or arising by necessary implication, that only a licence holder or person authorised by exemption could apply under section 36 to construct a generation station.
The grant of a section 36 consent would not enable the applicant to operate the generating station without a licence. A section 36 consent was a necessary but not a sufficient precondition for generating electricity in a generating station. By section 4, no generating station could be operated without a licence or exemption. It was customary in statutory development consents to include conditions governing the operation of the new building and, by requiring a section 36 consent for operations, the 1989 Act enabled the respondents to impose conditions relating to the use of the generating station as well as its construction.
The policy considerations underlying the Act also supported the view that a section 36 licence could be granted to a person who did not have a licence or exemption. The 1989 Act aimed to liberalise the British electricity market by privatisation. Although the Act did not address who would construct generating stations, it was not a necessary part of the statutory model that the persons who built the new generating stations would also be the persons who later ran them. The Act contained two separate regulatory regimes, one dealing with the construction of electricity generating stations and overhead lines and the other dealing with the licensing of electricity supply, including generation. The two regimes were overseen by different regulators. No regulatory gap would result from allowing applications under section 36 by persons who were not subject to the environmental duties under para 3(1) of Schedule 9 to the 1989 Act. The respondents had a duty to have regard to environmental matters when considering such an application and had wide powers to impose conditions to protect the environment. There was no need to require a section 36 applicant to hold a generation licence or exemption in advance given that the respondents could include appropriate conditions in a consent.
(2) Even if the condition relating to the design statement were unenforceable, that would not invalidate the section 36 consent. Other conditions in the consent required that the development be constructed in accordance with the supplemental environmental information statement (SEIS). The SEIS contained important elements of the benefits which the design statement condition promoted and the respondents could insist on compliance with the SEIS. Accordingly, the design statement condition was not a fundamental condition determining the scope and nature of the development and its invalidity therefore would not invalidate the consent.
Moreover, a planning condition was only void for uncertainty if it could be given no sensible or ascertainable meaning. Even if the design statement condition could not be enforced, it was not uncertain. It would still take effect by requiring the developer to produce a design statement and obtain its approval by the respondents before the development could begin. Nor was there any uncertainty as to what amounted to compliance with the condition. Construing the conditions as a whole, the consent contained a mechanism enabling the respondents to use both the design statement and the construction method statement required by another condition to regulate the design of the wind farm in the interests of environmental protection and to require compliance with those statements. The flexibility conferred on the respondents by other conditions in the consent, enabling them to modify the way in which the wind farm was constructed and operated, did not invalidate the conditions since the respondents were not able to alter the nature of the approved development.
Per curiam: Had it been necessary to decide the issue, the court would have held that the design statement condition was enforceable. It was appropriate to infer that the consent, read as a whole, required the developer to conform to the design statement. There was not a complete bar on implying terms into planning permissions. The case law on planning conditions under the planning legislation, so far as it suggested otherwise, was not directly applicable to conditions under the differently worded provisions of the 1989 Act. Whether words were implied into a document depended on the interpretation of the express words and, while restraint was required when implying terms into public documents with criminal sanctions, there was no reason for excluding implication altogether: Sevenoaks District Council v First Secretary of State [2004] EWHC 771 (Admin); [2005] 1 P&CR 13; [2004] PLSCS 69, Hulme v Secretary of State for Communities and Local Government [2011] EWCA Civ 638; 2011] PLSCS 139 and Telford and Wrekin Council v Secretary of State for Communities and Local Government [2013] EWHC 79 (Admin); [2013] 1 EGLR 87; [2013] 17 EG 100 distinguished. Lord Hodge, Lord Mance and Lord Carnwath made general comments on the appropriate approach to the interpretation of planning consents, taking the view that the same principles applied as in relation to other legal documents, albeit that, in interpreting planning consents in their relevant context, it was necessary to take into account that they were public documents which might be relied on by parties unrelated to those originally involved.
John Campbell QC and James Findlay QC (instructed by Balfour & Manson LLP) appeared for the appellant; James Mure QC and Kay Springham (instructed by the Scottish Government Legal Directorate) appeared for the respondents.
Sally Dobson, barrister
Read a transcript of Trump International Golf Club Scotland Ltd v Scottish Ministers here
