What did we learn from this process?
- It takes time – more than two and a half years (the consent was granted on 26 March 2013, and Supreme Court decision was issued on 16 December 2015).
- Although there is a separate Scottish court system, the final decision was by the UK Supreme Court, but with the lead judgment coming from a Scottish judge.
- Legal challenges evolve – after losing the first round, Trump raised 2 new points in round 2, and one of those was dropped in the appeal to the Supreme Court.
- Remember the excitement about Lady Clark’s decision in Sustainable Shetland that a generation licence was required before an application could be made for section 36 consent? That decision was reversed on appeal, and the Supreme Court in Trump agreed that no generation licence is required. So the point is well and truly settled.
- The legal test for bias is difficult to meet – indeed, Trump did not argue that ground of challenge in the Supreme Court.
- Judges are reluctant to strike down a consent condition for uncertainty.