Legal Writing, Aberdeen Wind Farms and an Annoyed Billionaire

It often happens that cases depend on one thing: writing.

Cases, and fortunes, are made and lost by the stroke of a pen. How a law is interpreted, and of what meaning is given to words. What legal and moral concepts are under debate, and how to apply those concepts set out and defined in writing.

The meaning of words, be they in an Act of Parliament, an EU Directive, a UN Resolution, or a leading case authority, can be bitter or helpful to those seeking justice. Be they pauper or millionaire, business leader or brick layer, the words of a statute can have the same impact.

One such case came before the Supreme Court in 2015. It involved a very well known foreign businessman and the Scottish Government.

The case commented property that the businessman (referred to here as D) had bought in Aberdeenshire, and was then developing as a luxury golf resort and hotel complex. In 2011, Aberdeen Offshore Wind Farm Ltd (AOWF) sought assent from the Scottish Government to build and operate the European Offshore Wind Deployment Centre for Aberdeen Bay. Under the plans, up to 11 wind turbines would eventually supply up to 100MW of electricity – a mere 3.5 km away from D’s golf course, and in full view of any guests.

D’s Scottish business representatives and lawyers inevitably opposed the wind farm. However,after consideration, the wind farm was approved in 2013. D’s lawyers sought a legal remedy, and went through the Scottish courts seeking to stop the wind farm. In this they were unsuccessful. Undeterred, D’s lawyers appealed to the Supreme Court. They argued that, due to the wording of the Electricity Act (1989),  the Scottish Ministers had no right to grant the wind farm application in the first place.

In previous litigation, all the grounds and arguments advanced were dismissed. Before the Supreme Court in London, only two legal grounds remained.

Under Section 36 of the Electricity Act, D alleged that the wind farm owners and planners could not be granted an application to create a wind farm. Under Section 36, only those with a licence to “a licence to generate, transmit, or supply electricity granted under” Section 6 of the 1989 Act,  or those who have a statutory exemption under Section 5, can be eligible to be granted such a licence. Amongst other legal interpretations and reasoning, Inter alia, D’s lawyers cited a part of Schedule 9 of the Electricity Act:

 

(3) Without prejudice to sub-paragraphs (1) and (2) above, in

exercising any relevant functions each of the following, namely, a

licence holder, a person authorised by an exemption to generate or

supply electricity and the Secretary of State shall avoid, so far as

possible, causing injury to fisheries or to the stock of fish in any

waters.

D’s lawyers took that to imp!y that any proposed operator of a wind farm must have a licence to do so.

Lord Hodge, in a well argued 14 or so paragraphs systematically demolished the arguments advanced by the international businessman’s lawyers. As if one line of argument was not enough- Lord Hodge has several. Unequivocally, he dismisses the Section 36 challenge. In his interpretation of the relevant sections of the 1989 Act there are absolutely no grounds here: the wording of the Act is against the businessman.

Next, under Condition 14 of a Section 36 consent from the Scottish Government, the operators must submit a detailed and comprehensive design plan. That plan will be assessed by the Scottish Government rigourously to see that the design concept meets very very stringent standards regarding design,environmental impact, etc.

According to D’s luckless lawyer,  in this case Condition 14

(23) “is both unenforceable and also so uncertain that it is irrational… First, he submits that the

condition is invalid because there is no mechanism by which the Scottish Ministers can force the developer to construct the windfarm in accordance with the design statement. He argues that… there is no express statement that the developer must construct and operate the development in accordance with its terms. Secondly, he submits that the condition is void for uncertainty because there is no indication of what compliance with it entails.”

Lord Hodge takes a very simple approach here, with his decision beginning “The short answer to this challenge is.” After delivering this verdict in the remainder of that sentence, he then takes 15 paragraphs to find many additional reasons to support his verdict. He repeatedly finds the Condition 14 challenge also to  begroundless. Once again, using the words and the drafting of the 1989 Act (with a bit of help from other legislation and cases), he finds a different interpretation of the law than D.

Words. Very simple things – but written in an Act of Parliament they take on a life of their own, a meaning of their own, a significance of their own – and a certain power. It is those words that decide the law, that are interpreted by lawyers and judges and which essentially win and lose cases.

In this case, the Supreme Court used the wording of the statute under causation, and utterly destroyed the attempt of the foreign businessman to stop a wind farm being built next to his Scottish golf resort.