Petition for Judicial Review by Trump International Golf Club Scotland Limited and The Trump Organization LLC

Petition for Judicial Review by Trump International Golf Club Scotland Limited and The Trump Organization LLC (petitioners) of decisions of the Scottish Ministers (respondents).

The petitioners sought judicial review of (i) the Scottish Ministers’ decision not to hold a public inquiry in relation to the application by Aberdeen Offshore Wind Farm Limited (AOWFL) for consent in terms of section 36 of the Electricity Act 1989 to construct and operate a wind-powered electricity generating station in Aberdeen Bay; and (ii) the Scottish Ministers’ decision to grant that consent.

The petitioners are the owners and developers of a golf course and resort development at the Menie Estate, Balmedie, Aberdeenshire.  It was granted planning permission in December 2008 following the Scottish Ministers’ decision to call-in the application and hold a public inquiry in relation to it.

In 2011 AOWFL applied for consent to construct and operate a deployment centre for testing offshore wind turbines in Aberdeen Bay.  The project consists of eleven wind turbines, with a maximum power generation of up to 100MW.

The petitioners objected to the application.  Following consultation with a variety of bodies, and consideration of the application and objections to it, the Minister for Enterprise, Energy and Tourism the Minister decided on 26 March 2013 that it was not appropriate to hold a public inquiry. At the same time he proceeded to consider the application and the objections, and granted consent.

The petitioners brought the present challenge to those decisions. The Scottish Ministers and AOWFL lodged answers to the petition for judicial review.  A first hearing took place on 12, 13, 14 and 15 November 2013 before Lord Doherty.

The petitioners challenged the decisions on several grounds. 

First, they argued that the respondents had no power to grant the consent which they had.  They submitted that, on a proper construction of the Electricity Act 1989, consent could only be granted to persons who were licence holders in terms of section 6 of the Act or who had the benefit of one of the four exemptions mentioned in Schedule 9, paragraph 3(1).  Reliance was placed on the decision of the Lord Ordinary to that effect in Petition for Judicial Review by Sustainable Shetland 2013 SLT 1173.  AOWFL was not a licence holder nor did it have the benefit of any of the relevant exemptions. 

Second, it was submitted that, for a variety of reasons (including certain remarks said to have been made by the First Minister) a fair-minded and informed observer would conclude that there was a real possibility of bias on the part of the decision-maker. 

Third, the petitioners maintained that the decision not to have a public inquiry was unreasonable.  In particular, it was suggested that the Minister had left out of account a number of material considerations; that he had wrongly taken into account an irrelevant factor; and that other aspects of his reasoning were irrational or inadequate. 

Fourth, the petitioners submitted that their art 6 and art 1 First Protocol (“A1P1”) ECHR rights had been engaged, and that the respondents had breached them. 

Fifth, they submitted that the respondents had failed to take account of the experimental nature of the deployment centre.  Given that precise details of the ultimate design had not yet been forthcoming, AOWFL and the Minister could not have complied with their duties under Schedule 9, paragraph 3.  In those circumstances, and given that the design would change over the lifetime of the consent, the development could not reasonably be controlled by a Design Statement and conditions. Condition 14 was imprecise and unenforceable.  It had been irrational of the Minister to grant consent.

Lord Doherty dismissed the petition.  He held that on a proper construction of the 1989 Act the respondents’ had power to grant section 36 consent to persons such as AOWFL.  He declined to follow the construction of the 1989 Act which had been favoured by the Lord Ordinary in Petition for Judicial Review by Sustainable Shetland.  He was not persuaded that the fair-minded and informed observer would conclude that there was a real possibility of bias on the part of the decision-maker; or that the decision not to have a public inquiry had been unreasonable or unlawful.  He ruled that the petitioners’ art 6 and A1P1 rights were not engaged; and that if they were engaged they had not been breached.  He was satisfied that the Minister had taken account of the experimental nature of the deployment centre; and that he was entitled to grant consent subject to the conditions which he imposed.

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