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Supreme Court dismisses Trump challenge to Scottish wind farm planning consent

Out-Law News | 16 Dec 2015 | 2:55 pm | 2 min. read

Renewables developers will "breathe a sigh of relief" after the UK's highest court rejected Donald Trump's legal challenge to planning approval for an 11-turbine offshore wind farm near his Aberdeenshire golf course, an expert has said.

Energy and planning law expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law.com, said that the US entrepreneur's pursuit of "weak arguments" had "perpetuated a lingering doubt over longstanding legal principles, to the detriment of the whole energy industry".

"Today's decision is long overdue but it still a welcome shot in the arm for offshore wind and the wider UK renewables industry," he said.

"It is hoped that this and other projects affected can now gather pace without the threat of costly legal challenges and delays on similarly dubious grounds hanging over them. Against the backdrop of the climate change agreement reached in Paris at the weekend and the contribution that renewable energy is expected to make to binding climate targets, this ruling underscores the need for a fair and efficient legal process which deals with unmeritorious claims quickly," he said.

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 company argued that the Scottish Government had no power to grant section 36 consent to a planned development, as the developers were not yet "the holder of a licence to generate, transmit or supply electricity" or a person exempted from such a licence. It also argued that one of the conditions of the consent, requiring the submission and approval of a design statement, was "unenforceable and also so uncertain that it is irrational".

The Supreme Court unanimously dismissed both grounds of challenge. Lord Hodge said that "neither the language of the 1989 Act nor its policy background" supported Trump's case, which depended on "the court's acceptance that Parliament sought to limit who may apply for a section 36 consent by using circumlocution and implication". He also disagreed that the design statement condition had "no ascertainable meaning"; and that, regardless, it could not be classed as "a fundamental condition which determines the scope and nature of a development and which, if invalid, would in turn invalidate the consent".

In a supporting judgment, Lord Carnwath expanded on the planning law-related reasons for dismissing Trump's appeal in some detail. He 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".

"Inevitably in so-called specialist areas of law, of which planning is one, there can develop a view that the material they look at has to be read in a way particular to that special area," said commercial litigation expert Craig Connal QC of Pinsent Masons.

"The judgments here – including the extensive opinion from Lord Carnwath, who would have at one time been best known as a planning lawyer, deserve careful study. In effect they counsel against that specialist approach and encourage a broader view, taking account of jurisprudence on interpretation from wider fields. Lord Carwath 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," he said.