Trump International Golf Club Scotland Ltd v The Scottish Ministers

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Trump Golf Club Ltd v Scotland
Trump Intl Link - Menie Estate Course clubhouse.JPG
Trump International Golf Links
Court UK Supreme Court
Full case name Trump International Golf Club Scotland Ltd v The Scottish Ministers (Scotland)
Decided 16 December 2015
Citation(s) [2015] UKSC 74
Case history
Prior action(s) [2015] CSIH 46
Court membership
Judge(s) sitting Lord Neuberger, Lord Mance, Lord Reed, Lord Carnwath and Lord Hodge

Trump International Golf Club Scotland Ltd v Scotland [2015] UKSC 74 is a 2015 judgment of the Supreme Court of the United Kingdom on the authority of the Scottish government to allow windfarm applications, under the Electricity Act 1989. It is relevant for UK enterprise law and the regulation of UK wind power.

Background

An offshore wind farm near the Energy Futures Centre was initially proposed by the Aberdeen Renewable Energy Group (AREG) in 2003. The original plan was for 20 two-megawatt turbines in an eight kilometres long row about 1 kilometre offshore.[1]

American billionaire and current president Donald Trump purchased a large part of the Menie estate near the village of Balmedie in 2006. He proposed to build a golf course called "Trump International Golf Links", with a hotel, holiday homes and a residential village.[2] He expressed his concerns about the wind farm in April 2006 stating that "I want to see the ocean, I do not want to see windmills."[3]

In 2006 RSPB Scotland expressed concern about the effect the wind farm and Donald Trump's golf course would have on the wildlife on the Aberdeenshire coast.[3] Scottish First Minister Alex Salmond helped Trump through local land disputes to enable the golf resort.[4]

In 2011, Aberdeen Offshore Wind Farm Ltd applied to construct and operate the Aberdeen Bay Wind Farm (European Offshore Wind Deployment Centre) with 11 turbines, about 3.5 km from the resort. The proposed windfarm would be visible from the resort and several other golf courses, like Newburgh On Ythan, Murcar Links, Royal Aberdeen and others,[4] some of which also have nearby turbines.[5]

In September 2011 the Trump Organization filed an objection to the planning application.[6]

Donald Trump also wrote to Salmond objecting to the turbines calling them "environmentally irresponsible".[6] In a follow-up letter in the same month, he went on to describe the wind turbines as "ugly", and that he was "fighting for the benefit of Scotland."[7]

In January 2012, Donald Trump halted work developing the golf resort pending a decision on the wind farm by Scottish ministers.[8] In March 2012, Trump sent another letter to Alex Salmond warning the first minister that he would become "known for centuries" as "the man who destroyed Scotland".[9] Appearing before the Scottish Parliament's economy, energy and tourism committee in April 2012, he claimed that he had been "lured" into building the golf resort upon assurances by the former and current first ministers, Jack McConnell and Alex Salmond, that the wind farm would not be built.[10] Jack McConnell and Alex Salmond denied the claims.[10] Trump stated that his golf course was due to open in July, but his plans for a hotel and hundreds of homes on the site had been put on hold.[10] In September 2012, complaints were upheld by the Advertising Standards Authority about newspaper adverts commissioned by The Trump Organization which gave "a misleading impression of the possible consequences of the Scottish government's plans to use wind turbines."[11] In October 2012, Trump attacked RSPB Scotland for dropping opposition to the wind farm claiming that "their name should be changed to RSKB - Royal Society for the Killing of Birds."[12] Later that month, his lawyers called for a public inquiry into the wind farm.[13] In December 2012, an advertisement sanctioned by The Trump Organization appeared in print which claimed that "tourism will suffer and the beauty of your country is in jeopardy".[14] The advert was later ruled "misleading" by the Advertising Standards Authority.[14]

When planning consent was granted by the Scottish government in March 2013, Trump vowed to "spend whatever monies are necessary to see to it that these huge and unsightly industrial wind turbines are never constructed."[15]

Court case

In May 2013 Trump launched a legal challenge against the Scottish government's decision to grant planning permission for the wind farm.[16] The hearing began at the Court of Session in November 2013,[17] but was rejected in February 2014.[18] An appeal against the decision was heard at the Court of Session in January 2015,[19] but Trump lost the appeal in June 2015.[20] After the decision Trump said he would appeal before both the Supreme Court of the UK and the European Courts.[20] Trump was unanimously found to be the loser of the case by the UK Supreme Court in December 2015.[21]

The appellants, Trump International Golf Club Scotland Ltd, opposed the development, but in 2013, the Scottish Ministers gave their consent for the creation of the windfarm to go ahead. The consent was then challenged by the appellants on two grounds. First, Trump Golf Ltd claimed that the Scottish Minister’s consent under the Electricity Act 1989 section 36 to build a wind farm was ultra vires. Trump Ltd argued Sch 9, para 3 gave rise to a necessary implication that only holders of licences to generate electricity, or exempt persons, could get section 36 consent. This meant the Scottish Ministers were not persons able to give consent, under sections 5 or 6 of the Electricity Act 1989. Second, Trump claimed that because condition 14 of the consent required submission and approval of a design statement, condition 14 void for uncertainty.

Judgment

Court of Session

On the first ground, the Lord President stated "The scheme of the legislation is that the granting of a consent under section 36 and the granting of a licence or an exemption under sections 6 and 5 respectively, are two separate processes". On the second ground, he stated, "If a design statement is not satisfactory to the Ministers, there will be no approval of the construction method statement without which the development cannot begin. There is no ambiguity when condition 14 is read in that way".[22] The other two judges who sat on the case concurred with this reasoning.

Supreme Court

The Supreme Court unanimously held that the planning permission was sound. The nature of the Electricity Act 1989 did not support the appellant's argument. The Act sought to liberalise the electricity market in Britain, and it is not necessary for those who build generating stations to be those generating the electricity. Even if condition 14 was unenforceable, that would not be enough to invalidate the consent.[23]

Lord Hodge gave the first speech (Lord Neuberger and Lord Reed agreeing). He held under the Electricity Act 1989 section 36, consent to build a wind farm was available to anyone, before getting a licence under s 6 or a s 5 exemption. Condition 14 promoted important environmental benefits.

Lord Mance agreed, adding that he ‘would not encourage advocates or courts to adopt too rigid or sequential an approach to the processes of consideration of the express terms and of consideration of the possibility of an implication.’ Both Lord Neuberger and Lord Clarke recognised in M&S that both express and implied terms are part of the process of construction as a whole.

Lord Carnwath agreed, adding that implication of terms in planning cases should follow the same basic principles of implication as elsewhere in the law, disapproving Sevenoaks DC [2004] EWHC 771 (Admin).

Significance

Alex Salmond, the former Scottish First Minister stated that Donald Trump was "three times a loser". A spokesperson for the Trump Organization responded to this by saying: "Does anyone care what this man thinks? He’s a hasbeen and totally irrelevant. The fact that he doesn’t even know what’s going on in his own constituency says it all.... He should go back to doing what he does best: unveiling pompous portraits of himself that pander to his already over-inflated ego".[24]

The director of WWF Scotland stated, "This result is great news for Scotland and for all those interested in tackling climate change and creating jobs".[25]

Vattenfall decided to proceed with 11 turbines in the 92 MW wind farm in July 2016.[26]

In November 2016, President-elect Donald Trump encouraged Nigel Farage to campaign in opposition to wind farms.[27][28] It was unclear if he would "use the power of the presidency to advance his business interests."[29]

See also

Notes

  1. ^ "Offshore wind farm plan unveiled". BBC News Online. 15 September 2003. 
  2. ^ "First look at Trump plan for 'world’s best course'". The Herald. Glasgow. 16 February 2010. 
  3. ^ a b "Fears over Trump's golfing plans". BBC News Online. 24 May 2006. 
  4. ^ a b Owen, David (10 July 2012). "Trump World". Golf Digest. Archived from the original on 14 September 2015. 
  5. ^ Kennedy, Jamie (2 June 2014). "Royal Aberdeen Review". golfalot.com. 
  6. ^ a b "Donald Trump sends wind farm complaint to Alex Salmond". BBC News Online. 14 September 2011. 
  7. ^ "Donald Trump's wind farm fight 'for Scotland's benefit'". BBC News Online. 15 September 2011. 
  8. ^ "Donald Trump 'halts golf resort work over wind farm'". BBC News Online. 18 January 2012. 
  9. ^ "Donald Trump warns first minister not to be 'Mad Alex' over wind power". BBC News Online. 12 March 2012. 
  10. ^ a b c "Donald Trump accuses Alex Salmond of wind farm 'betrayal'". The Daily Telegraph. London, UK. 25 April 2012. 
  11. ^ "Donald Trump wind turbine 'advert complaints' upheld". BBC News Online. 19 September 2012. 
  12. ^ "Donald Trump in fresh Aberdeen wind farm attack". BBC News Online. 5 October 2012. 
  13. ^ "Donald Trump calls for public inquiry into Aberdeen wind farm". BBC News Online. 16 October 2012. 
  14. ^ a b "Trump Organisation wind farm advert 'misleading'". BBC News Online. 24 April 2013. 
  15. ^ "Consent for Donald Trump row wind farm announced". BBC News Online. 26 March 2013. 
  16. ^ "Donald Trump launches legal challenge to wind farm decision". BBC News Online. 16 May 2013. 
  17. ^ "Donald Trump challenge to Aberdeenshire wind turbines begins". BBC News Online. 12 November 2013. 
  18. ^ "Donald Trump loses court battle against offshore wind farm". The Daily Telegraph. London, UK. 11 February 2014. 
  19. ^ "Trump and windfarm team face courtroom battle over Aberdeen turbines plan". Evening Express. Aberdeen. 20 January 2015. 
  20. ^ a b "Billionaire Donald Trump loses legal battle over offshore wind farm". STV. 5 June 2015. 
  21. ^ "Trump International Golf Club Scotland Limited v The Scottish Ministers [2015]". bailii.org. 
  22. ^ "Opinion of The Lord President in the Reclaiming Motion in the Petition of Trump International Golf Club Scotland Limited and the Trump Organization LLC against the Scottish Ministers". scotcourts.gov.uk. 5 June 2015. 
  23. ^ "New Judgment: Trump International Golf Club Scotland Ltd & Anor v The Scottish Ministers (Scotland) [2015] UKSC 74". UKSC blog. 16 December 2015. Retrieved 15 February 2016. 
  24. ^ Bowcott, Owen; Addley, Esther (16 December 2015). "Alex Salmond brands Trump 'loser' after judges reject windfarm appeal". The Guardian. London, UK. Retrieved 15 February 2016. 
  25. ^ "Donald Trump loses wind farm legal challenge". BBC News Online. 16 December 2015. Retrieved 15 February 2016. 
  26. ^ "Vattenfall to invest £300m in Aberdeen offshore wind farm". BBC News Online. 21 July 2016. 
  27. ^ http://www.express.co.uk/news/politics/734195/Donald-trump-Nigel-Farage-Scottish-wind-farms
  28. ^ http://www.politico.com/story/2016/11/trump-scottish-wind-farms-231741
  29. ^ https://www.nytimes.com/2016/11/21/business/with-a-meeting-trump-renewed-a-british-wind-farm-fight.html

External links

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