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Trump International loses Appeal

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Trump International loses Appeal

18 December 2015

American property magnate and Republican presidential candidate Donald Trump has lost his appeal to the Supreme Court over the grant of consent for a wind farm off the Aberdeenshire coast.  Mr Trump developed a golf course at Menie some years ago, shortly after the idea for the wind farm was first proposed.  Concerned at the potential visual impacts on those using the golf course, Mr Trump’s company challenged the Ministers’ grant of consent on a wide range of grounds: see Trump International Golf Club Scotland Limited v The Scottish Ministers 2014 SLT 406 (OH) and 2015 SLT 369 (IH).  The pursuers appealed to the Supreme Court, arguing (i) that only those holding a generation licence under the Electricity Act 1989 could lawfully apply for a consent to construct a generating station and (ii) that a condition attached to the consent, which requires the submission and approval of a design statement, was void from uncertainty.  Giving the leading judgment in the Supreme Court, Lord Hodge rejects both arguments.  Lords Hodge, Mance and Carnwath all take the opportunity to discuss the case law on the implication of terms both in planning documents and more widely.  Lord Hodge holds that there is no complete bar on implying terms into planning permissions.  Whether words are implied into a document depends on the interpretation of the express words and, while restraint is required when implying terms into public documents with criminal sanctions, there is no reason for excluding implication altogether.  For Lord Carnwath, the process of interpreting a planning permission does not differ materially from that appropriate to other legal documents and there is no reason to exclude implication as a technique of interpretation where it is justified. 

Axiom’s James Mure Q.C. has acted for the Scottish Ministers throughout the litigation.

Trump International Golf Club Scotland Limited and another v The Scottish Ministers [2015] UKSC 74, 16th December 2015