Out-Law News 3 min. read
08 Jun 2015, 3:00 pm
The Inner House of the Court of Session, led by Lord President Lord Gill, said that the Outer House had been right to reject Trump's original claim against the Scottish ministers' planning decision in February last year. Trump and his company had objected to the planned European Offshore Wind Development Centre (EOWDC) on "planning, environmental and amenity grounds" and because of its likely financial impact on the Trump development, according to the judgment.
Scottish litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that the decision was interesting because of Trump's attempt to combine 12 separate lines of argument in order to show an overall pattern of bias by the ministers in favour of the proposed development. Trump had also pursued a "bold" line of argument in relation to generating licences which had previously been rejected by another panel of judges, Connal said.
Connal said that the aspect of the case likely to be of greatest general interest was the argument by Trump that individual acts that were not necessarily suspicious on their own but provided evidence of bias when taken together. "These ranged from an alleged remark by an official at a meeting under 'Chatham House rules' to the fact that the minister signed a decision the same day as a draft was presented to him, to an alleged remark said to have been made by then-first minister Alex Salmond at a golf-related social gathering,” said Connal. “This line was rejected by the court, with Lord Gill complaining that he 'failed to see' how putting the allegations together in aggregate strengthened the case."
"For the energy industry in Scotland, of more interest was the insistence by Trump on an argument that an application under section 36 of the Electricity Act for a wind farm also needed a generation licence at that time or the application was invalid. This was a bold argument, as in the Sustainable Shetland case last year all the lawyers involved ultimately agreed the point was wrong and the three judge bench said that if they had needed to decide the point they would have agreed. To no one's great surprise, the bench in this case also agreed," he said.
In the Sustainable Shetland case in September 2013 the Outer House of the Court of Session had found that a developer had to hold a generation licence or fall within a class of exemption before it could apply for 'section 36' consent for a generating station under the 1989 Electricity Act. However Lord Doherty, who heard Trump's original judicial review application shortly after this ruling was handed down, had rejected the same line of argument as the licensing regime is separate from the consenting regime. The point has since been confirmed by the Inner House in the Sustainable Shetland case, and by the Scottish government.
The Scottish ministers had consented to the wind farm project in March 2013 without referring it to a public inquiry. Trump claimed that this was unlawful both because the developer had not yet obtained a generating license, and because the ministers had "acted in breach of natural justice by having pre-determined the issue and by displaying bias in favour of [the developer]". Trump's lawyers accepted that "most, if not all" of the points they put forward to demonstrate this bias could be "given an innocent interpretation" when considered individually.
Lord Gill said that Trump's arguments did not "distinguish between a predisposition to favour a proposal and a predetermination to decide in favour of it, come what may". He added that it was difficult to take remarks alleged to have been made by Alex Salmond on "a social occasion no doubt dedicated to the appreciation of golf" and reported on a blog as "a considered statement of the Scottish ministers' intentions, especially as the decision was one that would be made by [the energy minister] in light of detailed technical advice".
"The emphasis in counsel's submission was that the multiplicity of allegedly suspicious considerations when looked at as a whole pointed clearly to the conclusion that the decision was pre-determined and that the ministers showed bias in favour of the development," the judge said.
"I do not agree. None of the considerations founded on by [Trump] comes anywhere near to supporting [his] suspicions. I fail to see how the aggregation of them makes its case any stronger," he said.
On the section 36 point, Lord Gill said that the argument that only a licence holder or exempt person was entitled to apply for consent was "fallacious".
"In my opinion, the true interpretation is that the entitlement to apply for a section 36 consent is not limited to the restricted class of persons who are either licensed or exempt; but that where an applicant under section 36 obtains consent, as in this case, for the construction and operation of a generating station, it will require to obtain a licence or an exemption before it can generate electricity in the station," he said.
According to a BBC report, Trump has already indicated his intention to appeal to the UK Supreme Court and the European Court. Connal said that he was entitled to do so, "without leave", until the Courts Reform (Scotland) Act introduces new rules later this year.