By Murray Shaw of Biggart Baillie LLPB

A critical element of the project is to stabilise mobile sand dunes at Balmedie. This is done by the planting of marram grass. Marram grass can only be planted between November and March.

Accordingly Trump International Golf Links (the Second Respondents) made a separate full application for planning permission to carry out these works. Planning permission was granted. That decision was challenged by Mary Forbes and the decision of Lady Smith purely relates to whether or not any interim order should be granted to restrict the planting pending determination of the case. While the issues to be decided by Lady Smith were fairly narrow in scope, the case is nonetheless of interest and significance, particularly as it is one of the few Scottish cases dealing with the application of the Environmental Impact Regulations.

It should be noted that in the Petition Mary Forbes also challenged 5 other planning permissions granted by Aberdeenshire Council. These related to the change of use of small areas of land which had not been included in the original planning application, none of which is currently owned by Trump International Golf Links. These have been the subject of considerable controversy already because Trump have raised the possibility of the Council using their CPO powers to acquire these 5 areas of land. However, the issues in relation to these 5 permissions were not the subject of any consideration by Lady Smith in the context of the hearing which took place in December resulting in her decision of 6 January 2010. It should also be noted that the position in relation to the use of compulsory powers is still an issue between the Council and Trump so it is unlikely this case will have to consider the use of those powers at all, though the 5 other permissions will be relevant in the context of any consideration of the use of these powers by the Council.

Lady Smith in effect had to consider 3 issues:-

1. Whether Mary Forbes had title and interest to bring the Petition.

2. Whether there was a prima facie case.

3. Whether the balance of convenience favoured the grant of any interim orders.

So far as the first issue is concerned Mary Forbes is the mother of Michael Forbes, a well known opponent of the scheme who owns a property adjacent to the Trump development which has been the subject of considerable media comment. His mother is not a heritable proprietor of any land and she did not object to the application for the planting of marram grass. She signed a letter written by her son in relation to the original application, a letter Lady Smith treated as an objection to that application.

Lady Smith came to the view that Mary Forbes had neither title nor interest to bring the Petition. In reaching that decision Lady Smith considered a number of Scottish authorities. The fact that there had been no specific objection by Mary Forbes to the application resulting in the permission which was challenged was of critical significance in Lady Smith’s determination. In relation to interest Senior Counsel for Mrs Forbes relied heavily upon a number of European Conventions and/or Treaties. Lady Smith however came to the view that while the issue of title and interest under Scots Law had to be considered in the context of these ultimately these all recognised that there had to be some test which under European Law is generally referred to as a test of “sufficient interest”. That she considered ultimately fell to be determined by national law and she went as far as to observe that the test might be different from state to state.

The next issue was whether or not there was a prima facie case. Clearly Lady Smith at this stage of the action did not have to finally determine matters. The critical point here revolved around the application of the Environmental Impact Assessment (Scotland) Regulations 1999. The original application decided by Scottish Ministers was accompanied by an Environmental Impact Assessment (an EIA). The application in relation to the marram grass was not. The critical issue in essence was whether or not it required to be and/or separately whether Aberdeenshire Council as planning authority had gone through the correct procedures in considering matters. Lady Smith held in fact that the stand alone application for the marram grass fell to be construed in the context of the outline permission granted by Scottish Ministers. In effect following established English authority the stand alone application was a way of satisfying the relevant conditions in relation to the marram grass. Having regard to the consideration of the environmental issues at the stage of the outline application and relying upon various authorities Lady Smith came to the view that there was no need for a further Environmental Impact Assessment nor had the procedures which Aberdeenshire Council adopted been flawed.

Her view is certainly a practical one. It appears that had the Trump Organisation simply sought the approval of reserved matters by appropriate applications for such approval rather than making a stand alone application and given the time which has elapsed since the grant of the outline planning permission no challenge would have been possible. On one approach the issue is simply one of timing.

Lady Smith therefore came to the view that there was no prima facie case and indeed observed that she thought “at best“ the case for the Petitioner “falls to be regarded as one which suffers from considerable weaknesses”.

The last issue revolved around the balance of convenience. The strength of the prima facie case was relevant to that. Equally relevant was the fact that the works had already started, the potential cost to the Trump Organisation of delaying the works and the fact that there had been detailed consideration of the environmental issues already. Lady Smith therefore was of the view that the balance of convenience did not favour the grant of any interim orders.

It will be interesting to see whether this decision is appealed and indeed how the case proceeds hereafter. A number of the issues touched upon aspects of European law and there may yet be a requirement to remit questions to the European Court for determination.