A decision by a Court of Session Judge today has gone some way to reassure developers that large scale wind developments (over 50MW) for which consent has already been granted will not be subject to challenge.
In September 2013 a Court of Session Judge, Lady Clark of Calton, concluded that only a licence holder can apply for consent under the Electricity Act 1989 to construct and operate a generating station.
As a result, the 103 wind turbine development proposed for Shetland by Viking Energy (who do not hold such a licence) has been put on hold. The decision was of particular relevance to windfarms above the 50MW threshold where there is a separation between licence holder and operating company. This is most likely where joint venture or partnership structures have been used, as was the case with the Viking proposal (which involved a partnership).
Lord Doherty has declined today to follow Lady Clark's ruling in a judgement on a separate petition for judicial review brought by the Trump Organisation, concluding that the Scottish Ministers do have power to grant consent to non licence holders. He based his reasoning on the following amongst a number of reasons (i) if the 1989 Act had restricted the granting of Section 36 consent to limited categories of persons he would have expected the legislature to use clear words to make that plain (ii) the 1989 Act aims to promote increased competition and the opening up of the market to new entrants, not to restrict these (iii) in his words"many consents for the construction of generating stations have been granted to persons not holding either a licence or an exemption. The Courts are understandably reluctant to disturb a settled construction and the practice that has been based on that construction" (iv) concerns that non licence holders would not be subject to duties with respect to protection of the environment were unfounded as there is an array of other legislative constraints which would apply.
It will be interesting to see whether the Trump Organiswation appeals this decision.