Trump International Golf Club Scotland Ltd & Anor v The Scottish Ministers (Scotland) [2015] UKSC 74

Trump International challenged Scottish Ministers' consent for an offshore windfarm near its golf resort, arguing only licence holders could apply under section 36 of the Electricity Act 1989 and that a design condition was void for uncertainty. The Supreme Court unanimously dismissed the appeal.

Facts

Trump International Golf Club Scotland Limited (TIGC) developed a golf resort at Menie Estate, Aberdeenshire. In 2011, Aberdeen Offshore Wind Farm Limited (AOWFL) applied under section 36 of the Electricity Act 1989 for consent to construct and operate the European Offshore Wind Deployment Centre in Aberdeen Bay, comprising up to 11 turbines with a maximum 100MW generating capacity, approximately 3.5 kilometres from the golf resort. On 26 March 2013, the Scottish Ministers granted consent subject to conditions. TIGC challenged that consent, having lost at first instance before Lord Doherty and in the First Division of the Inner House.

Issues

Two grounds were before the Supreme Court:

1. The section 36 challenge: whether only the holder of a licence under section 6, or a person exempted under section 5, of the 1989 Act may apply for and be granted a construction consent under section 36.
2. The condition 14 challenge: whether condition 14 (requiring submission and approval of a detailed Design Statement) was void for uncertainty or unenforceable, thereby invalidating the consent.

Arguments

Appellants (TIGC)

Mr John Campbell QC argued that paragraph 3 of Schedule 9 to the 1989 Act, particularly sub-paragraph 3(2)(b), gives rise to a necessary implication that only licence holders or exempt persons may apply for a section 36 consent, since the Scottish Ministers must have regard to the applicant’s compliance with sub-paragraph 3(1)(b) environmental duties—duties which only licence holders and exempt persons owe. He submitted that statutory policy required a logical progression: obtaining a licence/exemption, then applying under section 36, then publishing the paragraph 4 statement, then implementing the consent. On condition 14, he argued it was unenforceable (no mechanism to compel construction in accordance with the design statement), void for uncertainty, and that the Ministers’ power to agree departures (condition 13) rendered the scope of the development uncertain. He relied on planning authorities including Sevenoaks District Council v First Secretary of State [2005] 1 P & CR 13 for the proposition that conditions cannot be supplemented by implication.

Respondents (Scottish Ministers)

Mr James Mure QC submitted that the structure and language of the 1989 Act placed no restriction on who may apply for section 36 consent, that two regulatory regimes operated separately (construction consents and licensing/regulation of supply), and that environmental protection was secured by the Ministers’ own duty under paragraph 3(2)(a), the imposition of conditions under section 36(5), and environmental impact assessment requirements. The established practice was for commercial organisations to obtain section 36 consents before seeking a generation licence.

Judgment

The section 36 challenge

Lord Hodge (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agreed) rejected the section 36 challenge. The Court examined first the structure and language of the 1989 Act: section 4 makes generating without a licence an offence but does not prohibit construction without a licence; section 36 and Schedule 8 place no restriction on applicants; and Schedule 9 only applies to “relevant proposals” of 10MW or more, while offshore stations of 1MW require section 36 consent—indicating Schedule 9 is not a comprehensive environmental control regime but a survivor from prior legislation. Sub-paragraph 3(2)(b) could sensibly be read as if containing the words “(if any)” after “duty”, so that the Ministers consider compliance only where the applicant in fact owes such duties.

On policy, Lord Hodge gave five reasons: (i) the 1989 Act liberalised the electricity market and did not require constructors and generators to be the same persons; (ii) two distinct regulatory regimes operate (land use consent vs licensing of supply), with different regulators post-devolution; (iii) no regulatory gap arises because the Ministers themselves owe duties under paragraph 3(2)(a) and impose conditions following environmental impact assessment; (iv) section 36(5) allows conditions as to ownership or operation, so prior licensing is unnecessary to ensure competence; and (v) established practice in both British jurisdictions has been to obtain section 36 consent before applying for a generating licence, without evidenced harm.

The condition 14 challenge

The Court held that condition 14 was neither void for uncertainty nor unenforceable, and in any event would not invalidate the consent. The scope of the development was defined by Annex 1 and Figure 1 (11 turbines, maximum blade tip 198.5 metres, fixed locations). Condition 7 incorporated the environmental statement and supplementary environmental information statement (which contained design principles formulated with regard to SNH guidance), enabling the Ministers to insist on compliance with those design principles.

Applying Fawcett Properties Ltd v Buckingham County Council [1961] AC 636, Lord Denning’s test was cited:

a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them. And this applies to conditions in planning permissions as well as to other documents.

Condition 14 had ascertainable meaning. Moreover, condition 13 required a Construction Method Statement which expressly had to include the Design Statement; the Ministers could thus require AOWFL to incorporate compliance into the CMS, making compliance obligatory. Condition 24 (vessel management plan, cross-referenced to the CMS and design statement) reinforced that conclusion.

Interpretation and implication

Lord Hodge addressed whether terms could be implied into planning-type conditions. He held that interpretation of public documents is an objective exercise, but extrinsic material has limited scope because third parties may rely on the document and breach may give rise to criminal liability (section 36(6)). Nevertheless, citing Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 and Marks & Spencer plc v BNP Paribas Securities Trust Company (Jersey) Ltd [2015] UKSC 72, he saw no principled reason for excluding implication altogether, although great restraint must be exercised. Statements in Walton-on-Thames Charities and Sevenoaks that there can never be an implied condition were “too absolute”.

Lord Mance added that the processes of construing express terms and considering implication are part of an overall, potentially iterative, process of objective construction.

Lord Carnwath provided extensive commentary on the planning cases. He criticised the elevation of Widgery LJ’s obiter remarks in Walton to a general rule excluding implication, observing they reflected an outdated view of planning control as a forfeiture of property rights. He held that planning permissions are not in a special interpretative category and that implication is available where justified by familiar restrictive principles. He further noted that the enforcement regime under the 1989 Act is simpler than under the Town and Country Planning Acts: section 36(1) requires construction “in accordance with” the consent, and any matter requiring subsequent approval forms part of that compliance requirement. Even disregarding condition 13, compliance with the condition 14 Design Statement must as a matter of common sense be implicit, since otherwise the statement would have no practical purpose.

Implications

The decision settles, for section 36 of the 1989 Act, that there is no restriction on who may apply for a consent to construct or operate a generating station: applicants need not hold a section 6 licence or section 5 exemption at the time of application. This confirms long-standing industry practice and is significant for developers of offshore and onshore generation projects, who can secure consent before obtaining generation authorisations.

On the interpretation of conditions in public consents, the judgment is important across planning and energy law. It clarifies that:

• Conditions in public documents are interpreted objectively by reference to what a reasonable reader would understand, considering the conditions as a whole, the consent’s purpose, and common sense.
• Extrinsic material is of limited use, but documents incorporated by reference or relied on to resolve ambiguity may be considered.
• The criminal consequences of non-compliance call for clarity and precision in drafting—and accordingly judicial restraint when implying terms.
• Nevertheless, there is no absolute bar on implying terms into conditions in planning permissions or section 36 consents; Sevenoaks and Walton are not to be read as establishing such a bar.

The Court endorsed the advice in Planning Circular 4/98 (and the equivalent Circular 11/95) that conditions should be precise and clear, while indicating that the difficulties identified in that advice about enforcing approved schemes may be overstated. The judgment also reflects a broader modern tendency, signalled by Lord Hodge, towards harmonising interpretative approaches across different categories of legal document, while recognising that contextual differences (such as third-party reliance and criminal sanction) influence the result.

The decision does not establish that any condition requiring approval of subsequent details automatically imports an implied requirement to comply with the approved details—each case turns on construction of the particular consent. However, where the practical purpose of the condition can only be achieved by compliance, that requirement may be implicit.

Verdict: The appeal was dismissed. The Supreme Court unanimously held that section 36 of the Electricity Act 1989 does not restrict applicants to licence holders or exempt persons, and that condition 14 was neither void for uncertainty nor such as to invalidate the consent.

Source: Trump International Golf Club Scotland Ltd & Anor v The Scottish Ministers (Scotland) [2015] UKSC 74