The UK’s Supreme Court has rejected a challenge by Donald Trump to the development of an offshore windfarm near Aberdeen, close to Mr Trump’s golfing development on the Aberdeenshire coast.
The Supreme Court has backed an earlier decision by the Inner House of the Court of Session which overturned the view expressed by a Court of Session Judge, Lady Clark of Calton in September 2013, that only the holder of a licence to generate electricity can apply for planning consent under the Electricity Act 1989 to construct and operate a generating station. That decision was of particular relevance to windfarms of capacity of 50MW and above where there was a separation between the licence holder and operating company, as was the case with the proposed development on Shetland by Viking Energy.
The Supreme Court gave a range of reasons for their decision having looked at the legislative background including the following:
(i) “ the aim of the 1989 Act was to liberalise the market for the generation, transmission and supply of Electricity in Britain by privatisation…But it was not a necessary part of this model that the persons who sought to build the needed new generating stations were the same persons as those who later generated electricity at those stations”;
(ii) the Court noted that “it has been the established practice in both of the British jurisdictions for commercial organisations to apply for and obtain section 36 consents before they seek a licence to generate electricity…No evidence was presented that this practice has resulted in unsuitable persons applying for and obtaining section 36 consents or in any failure to protect the environment”.
The decision represents a boost to the Aberdeen project and other similar projects.