Trump International Golf Club Scotland Ltd v Scottish Ministers
Supreme Court (Scotland)
Citations: [2015] UKSC 74; [2016] 1 WLR 85; [2017] 1 All ER 307; [2016] JPL 555; [2016] CLY 1727.
Facts
Scottish Ministers granted a company permission to construct and operate an offshore windfarm.
- Clause 7 of this permission required the farm to comply with the terms of an environmental information statement.
- Clause 13 required the company to submit and have approved a construction method statement before beginning construction.
- Finally, clause 14 required the submission of a detailed design statement prior to construction.
The petitioners ran a golf club within sight of the proposed development. They sought judicial review of the permission decision. They argued that the Ministers had no authority under the Electricity Act 1989 to grant this permission. This was because the company was not a body as described under sections 5 or 6 of the Act. The petitioners also argued that clause 14 of the permission was void for uncertainty.
Issue(s)
- Did the company need to meet the conditions of section 5 or 6 to receive consent?
- Was clause 14 void for uncertainty?
Decision
The Supreme Court held against the petitioner. The statute did not confine the power to grant permission to bodies defined in sections 5 and 6. This did not have the effect of sparing the company the environmental obligations imposed on such bodies. This was because Ministers are required to consider a project’s environmental impact and may impose conditions on any permission. The Scottish Ministers therefore had the power to grant permission to the company.
The Court also held that clause 14 was not void for uncertainty. It had an ascertainable meaning. Any uncertainty would depend on the design statement’s terms and how the Ministers incorporated its requirements into the construction method statement. The clause’s flexibility (as well as clauses 7 and 13) did not make the permission uncertain. Even if the clause had been void for uncertainty, this did not void the entire permission. Clause 14 was not a fundamental condition, so it could be severed from the rest of the permission.
This Case is Authority For…
When interpreting a public document such as the permission in this case, the court examines objectively:
‘what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole.’
The court will consider ‘the natural and ordinary meaning of the relevant words, the overall purpose of the [document], any other conditions which cast light on the purpose of the relevant words, and common sense.’ It may also consider documents connected to the application process or referred to in the document.
The Court noted that it should exercise restraint before implying terms into an arrangement which imposes criminal sanctions on one party. However, implication is possible.
Other
Lord Hodge characterised interpretation of express language in a contract or document as a ‘precursor’ to considering whether any terms should be implied.
Lord Mance disagreed. He argued that an overly rigid or sequential approach to construing express terms or implying terms is inappropriate. Since a contract/document must be construed as a whole, it is possible that an implied term will cast new light on the meaning of the express terms. He described:
‘the processes of consideration of express terms and of the possibility that an implication exists are all part of an overall, and potentially iterative, process of objective construction of the contract as a whole.’
