December 3, 2013
Scotland

Judges reject Trump’s bid to enter Viking windfarm hearing

The Shetland Times | 03/12/2013 | www.shetlandtimes.co.uk

A bid by American tycoon Donald Trump to enter the legal proceedings over the Viking Energy windfarm was rejected by civil appeal judges today.

Mr Trump has already gone to court to challenge plans for an offshore wind farm in Aberdeen Bay about two kilometres from his luxury resort and golf course at Balmedie which he opposed.

But his lawyers were also prepared to intervene in an appeal due to be heard next year brought by ministers over the Viking project after a judge ruled against them in that case.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Smith and Lady Dorrian, rejected their application at the Court of Session in Edinburgh today.

Lord Carloway said: “The Trump Organization and its related companies are already involved in a litigation where they can seek the remedy which they wish to achieve.”

The judge said if their judicial review challenge over the north-east offshore wind farm, where a decision is awaited, goes against them it would be open to them to return to the civil appeal court.

Gordon Steele QC, for the Trump organisations, had told the court that they had taken a competency point in their judicial review which was identical to that in the Shetland case. The competency issue refers to the decision of judge Lady Clark of Calton earlier this year that Viking Energy did not have the necessary generator’s licence to allow it to progress with the application.

Mr Steele said the Trump legal team had become aware that Sustainable Shetland, which objected to the Viking project and successfully fought a judicial review over it, did not intend to argue the competency point in their appeal because of financial reasons.

Mr Steele said they did not think it right that a matter of such importance should proceed without another party providing contradictory arguments.

He said they would have been prepared to argue that Lady Clark was correct in the Shetland case but would also develop the argument by considering the issue of offshore generating stations or turbines.

The court has now appointed an independent QC to provide advice on the issue.

The appeal judges also rejected a bid by commercial wind farm developers to enter the Shetland case.

Lord Carloway said the judges did not consider, in terms of a rule of court, that they had a direct interest in the matter and they had their own route to challenge decisions.

A move by the Royal Society for the Protection of Birds to become involved in the Shetland case over the interpretation of the 2009 Wild Birds Directive was also rejected.

The Scottish ministers gave the go-ahead for the construction of the 103 turbine Viking wind farm last year.

But campaign group Sustainable Shetland went to the Court of Session to successfully challenge the decision to grant consent for the £556 million project.

Lady Clark ruled the decision should be set aside. During the hearing it emerged that the developers Viking Energy partnership did not have a licence or an exemption in terms of electricity legislation.

The judge ruled that on a proper construction of the legislation only a licence holder or someone with an authorised exemption could make such an application.

Lady Clark said it was plain from the legislation that the licensing and exemption provisions were the means by which Parliament intended to regulate the industry.

She also held that a decision-maker in such cases required to take account of the 2009 birds directive and said: “In my opinion that should be the starting point for consideration of the facts by the decision-maker and there is no suggestion in this decision that was done.”

Concerns had been raised about the impact of the Shetland development on the whimbrel, a wading bird, of which Shetland has 95 per cent of the UK population.

Sustainable Shetland intends to make representations to appeal judges at next year’s hearing over the birds directive.

• More on this story in Friday’s Shetland Times.

URL to article:  https://www.wind-watch.org/news/2013/12/03/judges-reject-trumps-bid-to-enter-viking-windfarm-hearing/