In the recent case of Trump International Golf Club Scotland Limited and another v The Scottish Ministers the Supreme Court expressed the opinion that it was possible to imply terms into planning conditions. This deviates from the position taken in previous case law in which it was said there was no room for implication.
The Court had to consider the validity of a condition in a consent under the Electricity Act for an off-shore wind farm due to be developed near Aberdeen. In 2013 the Scottish Ministers granted permission for this development. The permission was opposed by the operators of a golf resort 3.5km away from the development. It was argued that the wind farm would diminish the amenity of the resort and a challenge to the decision was lodged.
The operator of the golf resort argued that a condition requiring the Scottish Minsters to approve the design of the wind farm was unenforceable. The condition required that detailed designs of the wind farm be submitted to the Scottish Ministers before development began, but there was nothing within this condition to suggest that the designs had to be approved before development commenced and no mechanism through which the Scottish Ministers would be able to monitor whether the development complied with the designs. Because of this, the golf resort argued that this was a defective and unenforceable condition.
The Court dismissed the appeal, concluding that the permission should stand and was enforceable against the developer of the wind farm. The Court opined that although planning permissions are public law documents and breaches of conditions can lead to criminal sanctions, this is not a bar on implicating terms into conditions. It did emphasise, however that these factors still mean that clarity and precision in drafting are important. It said a similar approach should be used to that used in interpreting other legal documents. This included taking into account the intention of the parties when drafting the document. Using this approach, it was decided that the obligation to construct the wind farms in accordance with the submitted designs was implied.
This approach is likely to lead to increased uncertainty over the meaning of conditions and what compliance with them will entail. This is highly undesirable where criminal sanctions are involved. It will be important that local authorities draft clear planning conditions and that developers are careful to comment in advance on proposed conditions to minimise uncertainty.
For more information and advice on planning issues please contact Deborah Sharples on 01223 532757 or click here to email Deborah.