Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 166
P480/13	OPINION OF LORD WOOLMAN in the Petition of TRUMP INTERNATIONAL GOLF CLUB SCOTLAND LTD and THE TRUMP ORGANISATION LLC Petitioners; against THE SCOTTISH MINISTERS Respondents; And ABERDEEN OFFSHORE WINDFARM DEVELOPMENT LIMITED Interested Party: ________________

Petitioners: Steele QC, Burnet; Dundas & Wilson CS

Respondents: Mure QC; The Scottish Ministers

Armstrong QC; Shepherd & Wedderburn

17 October 2013

Introduction

[1] This case concerns a proposed windfarm in Aberdeen Bay ("the windfarm"). On 1 August 2011, Aberdeen Offshore Windfarm Development Ltd ("the interested party") applied to the Scottish Ministers for consent to construct and operate the windfarm. Such consent is required in terms of section 36 of the Electricity Act 1989 ("the 1989 Act"). On 26 March 2013, the Scottish Ministers decided to grant consent, subject to certain conditions ("the decision"). They made the decision without holding a public enquiry.

[2] The petitioners own a golf course and resort at Balmedie Aberdeen. It is about 2km from the site of the proposed windfarm. The petitioners believe that if that development proceeds, it would have an adverse effect on their business operations. They sent various letters of objection to the Scottish Ministers before they reached the decision. The matter has attracted widespread public interest.

[3] After the decision was made, the petitioners lodged the present petition for judicial review. As originally framed, they contended that the decision was unlawful. The grounds of review are set out in great detail. For present purposes, it is enough to give their headings: "Breach of Natural Justice/Pre-determination/Bias", "Failure to Hold a Public Inquiry", "Contravention of ECHR" and "Material Considerations" (which I understand to mean a failure to properly evaluate the project).

Procedure

[4] The court granted first orders on 17 May 2013 and allocated four days for a first hearing, which is scheduled to begin on 12 November 2013. The court also fixed a timetable leading to that hearing. Draft arguments and productions are due to be lodged on 21 October, final arguments on 31 October, and the reading list, together with authorities, on 7 November.

[5] The petitioners now seek to discharge the first hearing. At the same time, they invite me to report one discrete issue to the Inner House for decision. That issue is the proper construction of section 36 and schedule 9 of the 1989 Act. The matter arises in the following way.

The Decision in Sustainable Shetland

[6] On 24 September 2013 Lady Clark of Calton issued an opinion in Sustainable Shetland [2013] CSOH 158. That petition also involved a challenge to a decision of the Scottish Ministers. There, they consented to the construction and operation of a windfarm on mainland Shetland. A number of issues were canvassed in the course of the proceedings before Lady Clark, including matters arising out of the Wild Birds Directive 2009. During the hearing, it emerged that the applicant did not have a licence or exemption under the 1989 Act. The question then arose as to whether the Scottish Ministers could properly grant consent to a non-licence holder. Lady Clark referred to this as the "competency" point. I shall use the same term in the course of this opinion.

[7] After a detailed analysis of the statutory provisions, Lady Clark held that on a proper construction of the 1989 Act, only a licence holder could make an application. Accordingly the Scottish Ministers had been wrong to grant consent to the applicant: paragraphs [113] to [115] of her opinion. She also indicated that she would have preferred to deal with the competency question as a preliminary matter: see paragraphs [47], [114] and [299].

[8] The Scottish Ministers have reclaimed the decision in Sustainable Shetland. On 15 October 2013 the case came before the Inner House on a motion for urgent disposal. Lord Menzies reserved a six day diet on the Summar Roll, commencing on 27 February 2014. He allocated three days each to the competency question and to the issues arising under the Wild Birds Directive 2009. Counsel for Sustainable Shetland informed the court that it had limited funding. Accordingly, it only intended to address the court in relation to the Directive and not in respect of the competency point. I understand that some discussion then took place about the absence of a contradictor on this important matter. Lord Menzies fixed a By Order hearing to take place on 20 November 2013.

Minute of Amendment and Motion

[9] A matter of days after Lady Clark issued her decision, the present petitioners lodged a minute of amendment in which they sought to add the competency point that had succeeded in Sustainable Shetland. Both the other parties lodged answers. They maintain that on a proper construction of the 1989 Act, applicants for consent under section 36 do not require to be licence holders.

[10] In their answers, the Scottish Ministers go further. They now contend that, even if their argument on competency is wrong, the court should exercise its discretion and refuse to reduce the decision. They found upon seven reasons in this connection, which can be summarised as follows:

a. The purpose of the relevant provisions of the 1989 Act is to encourage the preservation of amenity and fisheries in Scotland. Both the Scottish Ministers and the interested party paid due regard to the requirements of the legislation.

b. The absence of a licence has caused no prejudice to the petitioners.

c. The interested party provided the environmental materials to comply with the legislation.

d. The public interest does not favour the grant of reduction.

e. The petitioners unduly delayed in taking this point.

f. No purpose would be served by re-running the whole application process.

g. The interested party will require to obtain either a licence or an exemption in order to generate electricity at the windfarm.

[11] On 14 October 2013, the petitioners enrolled the following motion:

"(1) For the petition and answers to be amended in terms of the minute of amendment and answers ... and to reserve all questions of expenses; (2) for the competency point ... to be considered in advance of the remaining grounds of challenge; (3) for the action to be remitted to the Division for consideration of the competency point; and (4) for the first hearing assigned for 12^th to 15^th November 2013 to be discharged"

[12] The case came before me on 16 October 2013. During the hearing, the petitioners altered paragraph (3) of their motion and invited me to report the competency point in terms of Rule of Court 34.1, rather than to remit it. The first branch of the motion was not opposed, except in relation to expenses.

Submissions

The Petitioners

[13] There were three broad strands to Mr Steele's submission. First, he contended that it was important to have an authoritative decision on the competency point. He maintained that the competency point is identical to the one in Sustainable Shetland and that it should be dealt with first. If Lady Clark's decision is upheld, there will be no need to argue the other points in the case. It would be wasteful of the parties' resources and court time to argue other issues that might become irrelevant. If her decision is overturned, then that too would provide clear guidance.

[14] Second, he submitted that granting the motion would yield significant practical advantages. If the present case is reported to the Inner House, the petitioners could then act as contradictors in the reclaiming motion. They could advance counter arguments to those made by the Scottish Ministers. In addition, the present petitioners would be able to participate in any subsequent hearing that took place in the Supreme Court, which Mr Steele indicated was a real likelihood.

[15] Third, he argued that four days was no longer sufficient for the first hearing. He pointed out that three days had been set aside in the Inner House for the competency point. He estimated that seven days would now be required for the first hearing.

Scottish Ministers

[16] Mr Mure began by stressing the importance of expedition in judicial review proceedings. He submitted that although the construction of section 36 was common to both sets of proceedings, it was not a decisive point. The seven detailed points now incorporated in the Scottish Ministers' answers would have to be addressed by the Lord Ordinary who heard the petition. Further, if the construction point was taken in isolation, there was a real risk that the case would be appealed to the Supreme Court on two separate occasions, with consequent delay and inconvenience.

[17] With regard to the duration of the first hearing, Mr Mure invited me to prescribe time limits for parties' respective submissions. He stated that when the diet was fixed, parties thought that all matters could be dealt with in three days and allowed one further day by way of tolerance.

The Interested Party

[18] Mr Armstrong provided further background details about the windfarm. The interested party has European Community Flagship Funding to contribute to its overall cost of £240 million. The funding is due to expire in December 2016. The interested party has a contract to connect the windfarm to the national grid in December 2015. In order to meet that condition, work must begin by mid-2014. Any delay would be highly undesirable and might place the project at risk. His clients are therefore very concerned about any possible delay.

[19] In adopting the respondents' submissions, Mr Armstrong focussed on the question of delay. He pointed out that the petitioners had raised the competency point at a very late stage. He also essayed the possibility of limiting the scope of the first hearing to hear all matters other than the competency point.

Court and Counsel Availability for the First Hearing

[20] In the course of the hearing, I ascertained that further days were available in the week following the dates prescribed for the first hearing. Counsel for the respondents and the interested party are both available in that week. They are also willing to agree to time-limited submissions to ensure that all matters can be properly canvassed within the four days already allocated.

[21] Mr Steele indicated that neither he nor his junior were available in the following week. Further, he had instructions not to agree on any time limit for oral arguments. He submitted that to impose a guillotine would be unfair, given the time allocated in the Inner House for the competency point.

Decision

[22] At first glance the petitioners' suggestion is an attractive one. It would enable the Inner House to provide an authoritative decision. But other factors come into the equation. In particular, peering into the future as best I can, I must have regard to the possible consequences of detaching the competency point from the other issues in the case and the effect that might have on overall delay.

[23] In O'Reilly v Mackman [1983] 2 AC 237 (at 280-281), Lord Diplock stated:

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of the decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."

[24] That quotation has subsequently received high judicial approved, see Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, 749 per Lord Goff of Chievely; and Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering and Allied Workers Union, West Bay Management Ltd, Attorney General of the Commonwealth of the Bahamas [2011] UKPC 4, para 40.

[25] In my view, whatever the outcome of the reclaiming motion in Sustainable Shetland, further procedure will be required in the present case. Either there will be a remit to discuss the seven points relied upon by the Scottish Ministers, or there will be an appeal to the Supreme Court. In either case that will mean further delay, which could be lengthy. That would be most unsatisfactory. The principle of expedition is best met by allowing the first hearing to proceed.

[26] I also have regard to the context in which this application is made. The petitioners could have taken the competency point at any time since 1 August 2011. They chose not to do so until the end of September 2013. They are therefore the authors of the problem that has now emerged. But I observe that they are now in a much better position to deal with the competency point. They have the benefit not only of Lady Clark's full discussion and analysis, but also of her conclusion in their favour. They can lodge written submissions to develop any further arguments that they wish to deploy.

[27] With regard to the duration of the first hearing already fixed, if the petitioners seek to extend the length of the existing hearing, they can apply by way of motion to do so. Alternatively, and to my mind this seems much the better option, all parties can agree to time-limited submissions. I observe that the parties have already factored an extra day into their original calculations and there seems to me no good reason why the arguments cannot be concluded within four days. As I have already indicated, parties have the benefit of Lady Clark's opinion and both Mr Mure and Mr Armstrong are willing to time-limit their submissions.

[28] Should this course be adopted, there is a reasonable prospect that the Lord Ordinary's opinion will be available prior to the reclaiming motion in Sustainable Shetland. Dependent on timings, there is also a possibility that the petitioners may be able to appear as contradictors on the competency point.

[29] I therefore hold that on balancing all the factors, the first hearing should proceed. In doing so I note that normally a case is reported from the Outer House after full arguments on the point in issue. That has not happened in this case. Accordingly, it is not clear to me what assistance a report would serve in this case.

Conclusion

[30] There is no opposition to the petitioners' motion to amend their pleadings in terms of the minute and answers. Accordingly, I shall grant the first branch of the motion and award the expenses of the amendment procedure in favour of the Scottish Ministers and the interested party. I shall refuse the remaining branches of the motion.