One could have been forgiven for being mesmerised by the promises made by the Trump monolith when they announced plans to build a world class golf course and resort in Aberdeenshire in 2006. Trading as Trump International Golf Links, Scotland (TIGLS) and headed up, at the time, by the man who would become President of the United States of America, the announcement was made with the allure of excellent economic benefits and emphasised Donald Trump’s Scottish heritage. As early as April 2006 Tump set about securing what he sought by threatening to pull out entirely should there be any delay in the application. This would be a planning saga like no other. After all, the indicative masterplan showed 9 holes were to be positioned partly or wholly within the Menie dunes at Foveran Links – a Site of Special Scientific Interest (SSSI). This all-or-nothing approach to dealings is something of a trademark of Trump’s, now known the world over. In July 2018 the London School of Economics made publicly available documents sent to them following a request for disclosure under the Environmental Information Regulations. The documents show that the most recent assessments carried out at the SSSI by Scottish Natural Heritage found it to be partially destroyed by the golf course that now stands there. Meanwhile, locals are questioning what became of the proposed economic benefits to the region. Aberdeenshire Council’s policy had been not to allow development that would have a significant adverse effect on an SSSI unless the damage to the SSSI was ‘clearly outweighed by social and economic benefits of national importance’ and there was ‘no alternative site for development’ (Policy Env/2, Aberdeenshire Local Plan, June 2006).
Granting habitat a protected status is one of the main legal devices used across the globe to protect important areas from degradation. Typically, these protections are granted whilst allowing for reasonable exemptions. One needn’t use too much imagination to envisage a scenario in which dispensation be granted to someone altering a protected site. You might consider, for instance, a scenario in which human life is at risk and interference is required to reduce that risk. If altering the habitat were the only demonstrable way to reduce the risk of harm, very few, if any persons might try argue against the need to make a change to the landscape. This is an obvious example but it is used to highlight why exemptions are included when giving a site legal protection against man-made changes. The political and philosophical view-points of those making the law will have consequences for the number and type of exceptions. The question of how exceptions to the law were manipulated in favour of development at Foveran Links endures.
The loss of a unique and, therefore by most accounts, special habitat notwithstanding there is opportunity here to learn about the fallibility of ourselves and our processes. Some will use the case as call for austere legislation. There are often vague references to more prohibitive rules with narrower qualifications and supposedly greater rigour. Changing the law is extraordinarily difficult. Ensuring that existing legislation is enforced dutifully as well as using existing policy to bring about favourable results is also very difficult – but it is a perfectly practicable approach in comparison, though checks and balances of decision makers need to be available for this to be successful. Viewing the Menie scenario and the actions of the various stakeholders within a dichotomous framework; one which pitched ‘business’ against ‘the environment’ makes for an interesting analysis. Donald Trump’s all-or-nothing approach was calibrated to frame, from the outset, just such a narrative. He knew from his vast experience as a developer that for the application to be met without some controversy was extremely unlikely. At the genesis of what would go on to become Trump International Golf Links, Scotland (the name also given to the golf course itself) was an intention to shape the conversation about the development in terms of business vs the environment. This, accompanied with the bombast of the proposition, must lead us to ask who the narrative served and posit how things could be different as similar situations arise in the future.
Foveran Links was notified as a SSSI in February 1984. It had been recognised as a dune system that had developed over at least 4000 years and is well known for its migrant birds. In 1994 the Joint Nature Conservation Committee noted that, ‘much of the SSSI has been altered by agriculture though the natural gradation from sand dune to neighbouring land soil type still occurs at Menie Links and is of considerable interest’. Scottish Natural Heritage’s Management Statement says of the geology of Foveran Links that, amongst other things, it ‘comprises a dynamic assemblage of sandy beach, dune formations, a large wind eroded sand plain, and a shifting sand spit complex at the mouth of the river Ythan, all of which have been developed on a base of post glacial raised beach deposits’ and that it is of special interest ‘as a high quality example of the dune features that characterise the sand dune coastline of North East Scotland’. There are also comments on the Management Statement under the heading Principle Factors Influencing Management which read; ‘primary interest of the site relies on dynamic processes of sand deposition, erosion, stabilisation and the equilibrium between these processes […] the beach dune system which includes the Sands of Forvie SSSI will evolve naturally in response to changes in the sediment supply, local wind patterns and relative sea-level change, together with any associated increases in wave action and storminess’. Any adjective-laden description of the SSSI beyond the above seems gratuitous but suffice to say it was a place of rare magic and worthy of reverence.
SSSI designation was first introduced by the National Parks and Countryside Act 1949. The law protecting SSSIs has changed over the past 60 years, with significant alterations brought about via the Wildlife and Countryside Act 1981 and the Countryside and Rights of Way Act 2000. Alongside these changes, devolution has led to a different constitutional arrangement throughout the UK and environment and planning matters have been devolved in Scotland (as well as Wales and Northern Ireland). The Nature Conservation (Scotland) Act 2004, in particular Part 2 of the Act, now provides the principle legislation for the management of SSSIs in Scotland. Each SSSI has a list of Operations Requiring Consent (ORC) that detail exactly what operations an owner or occupier of land designated as a SSSI cannot carry out without the permission of Scottish Natural Heritage (Scottish Natural Heritage are the public body charged by the government with overseeing SSSI management).
On the whole, ORCs are permitted by Scottish Natural Heritage either without restriction or, in some cases, with qualifications attached, reasonably protecting the sanctity of a site and the reason for the notification in the first place. Unsurprisingly, constructing a monumental golf course part way across Foveran Links was an ORC. However, as per s.17 of the 2004 Act, Scottish Natural Heritage’s permission is not required in relation to the carrying out of an ORC which has been authorised by a planning permission that has been granted on an application under Part III of the Town and Country Planning (Scotland) Act 1997. Therefore, where planning permission is granted by a planning authority to develop on a SSSI, an offence is not committed when an ORC is carried out despite no express permission from SNH. The planning authority, as per the 1997 Act, is the local authority: in this case Aberdeenshire Council. As per s.15 of the 2004 Act, prior to permitting an ORC, Aberdeenshire Council had to notify SNH of the proposal to carry out the operation and they must have regard to any advice received from SNH in deciding whether to give permission and what (if any) conditions are to be attached to its permission. Following statutory consolation SNH objected to the principle location of the TIGLS golf course. The Royal Society for the Protection of Birds and the Scottish Wildlife Trust did the same. It was reported in Scottish regional newspaper The Press and Journal that TIGLS were not interested in SNH’s finding that the SSSI would be seriously damaged by the proposed development nor that a single course that did not transgress the SSSI was preferred. It also reported in July 2007 that Alex Johnstone MSP was supporting Trump and that he felt SNH were regularly ‘interfering unnecessarily’ in planning that was economically significant.
As per Aberdeenshire Council’s procedures, the application went firstly to their Formantine Area Committee who voted in favour of the application 7 to 4. The application then made its way to the Infrastructure Services Committee who voted 7 to 7. It was an extremely close vote, but the Chairman carried the decision and he had voted to refuse the application. Therefore, the application for development was turned down. The Chairman, Cllr Martin A Ford reports that there were two reasons that councillors were unhappy with the application, namely the anticipated loss to the SSSI should the development go ahead and also, contrary to the development plan, Trump proposed to build houses that would be sold on the open market and this was an inappropriate location. Ultimately the choice to be made was discussed as being between either protecting the SSSI or making a gain for the economy.
Following the decision of the Infrastructure Services Committee there was pandemonium. A reaction like none before occurred. In the press, in public and in politics the mood was frantic. The build up to the decision had been covered extensively in the papers and, following the decision of the Infrastructure Services Committee, those that voted against the development were vilified by some outlets. Their pictures were even printed on the front of one newspaper and the headline attached read ‘Traitors’. There were calls for reconsideration and the Council had to obtain a legal opinion on the matter to confirm it was, indeed, impossible and that TIGLS would either have to appeal or reapply (the same as any other applicant in this situation). Alex Salmond MSP, the First Minister for Scotland spoke to the leader of Aberdeenshire Council, Alan Campbell. As well as being the First Minister Salmond was also the local MSP for the Menie Estate. Meanwhile, the Cabinet Secretary for Finance and Sustainable Growth John Swinney MSP spoke with the Scottish Government’s Chief Planner Jim Mackinnon. TIGLS requested a private meeting with Alex Salmond – which he attended. At the end of this meeting Salmond telephoned Mackinnon, passed the phone to the TIGLS representatives and a meeting was arranged for the next day between the two. It was at this point that TIGLS began considering an unprecedented move; they wanted the application to be ‘called in’.
Section 46 of the Town and Country Planning (Scotland) Act 1997 states, ‘The Secretary of State may give directions requiring any such applications as are mentioned in section 34(2) to be referred to him instead of being dealt with by planning authorities.’. As the decision had yet to be notified in writing the application was technically still open and this was a possibility (it is typical for a decision to take a week or so to be formalised in writing). A planning decision had never been called in by a minister before, save for where a Minister had intervened to reject an application for reasons of national importance. TIGLS met with Mackinnon and the appeals process and the call in process were explained. TIGLS informed that they would not be appealing, continuing the all-or-nothing line. Mackinnon then spoke to Swinney and it was agreed that the application would be called in. This was done, by fax, that same afternoon. Concerns were immediately raised over Salmond’s involvement as First Minister. Given his position, he was subject to the Ministerial Code.
Sometime later in December 2008, following on from the calling in of the application, outline planning permission was granted for both the housing and the golf resort. Trump had succeeded in getting what he wanted and all within the remit of the law. Yet, a shadow of dishonesty hangs over the calling in of the application. A report by the Local Government Communities Committee on the Planning Application Processes at the Menie Estate was published in March 2008 that considered whether there was any wrongdoing during the planning application. It noted of the Ministerial Code that it is ‘up to individual Ministers to decide how to act in any particular situation. Enforcement is for the First Minister’ i.e. Alex Salmond. Most fascinating here are the quotes taken directly from the section in the Code relating to ministerial involvement in planning cases.
‘Ministers are free to make their electorate’s views about constituency matters known to the responsible Minister by correspondence, by leading deputations or by personal interview, provided they make it clear that they are acting as their electorate’s representative and not as a Minister […] It is particularly important to bear in mind that any attempt to influence the Minister taking a decision on a planning case, other than through the proper channels, could imperil the decision […] One of the basic tenets of the planning system is that, in the interests of natural justice, decisions are based on open and fair consideration of all relevant planning matters with the same information being available to all interested parties. Accordingly, Ministers and in particular the Planning Minister, must do nothing which might be seen as prejudicial to that process, particularly in advance of the decision being taken. Action that might be viewed as prejudicial includes (i) taking a decision, or being part of the decision making process, in respect of an application which falls within the Minister’s constituency; (ii) expressing an opinion publicly on a particular case which is, or may subsequently come, before the Minister for a decision (iii) meeting the developer or objectors to discuss the proposal, but not meeting all parties with an interest in the decision; or (iv) commenting on decisions once they have been issued, other than in terms of what has appeared in the decision letter or, in the case of structure plan approvals, any accompanying explanatory annexes’
There are no legal consequences resulting from breaking the Ministerial Code. It does serve as a device with which to weigh up the conduct of any given minister and, in respect of the constitution, is important in setting the rules by which a minister should act. There are, therefore, no options for redress in the courts when considering the behaviour of, for example, Alex Salmond. It is the case that the behaviour of the Minister can be measured and can be learnt from going forward. In the 2008 Report the committee goes on to say that they have, ‘serious concerns about the course of events involved in the Scottish Government’s decision making process from the time of the refusal of planning permission by Aberdeenshire Council on 29th November 2007 until the Ministerial call in of the application on 4th December 2007 […] These concerns surround (a) the intervention of the First Minister; (b) the Chief Planner’s meeting with the Applicants (c) the decision making process of the Cabinet Secretary for Finance and (d) the disparity between the ostensible grounds for the call in and the actual reasons’.
Despite their insistence to the contrary we cannot know whether TIGLS would have appealed or re-applied for planning permission had the Council’s decision stood. The R&A, who govern the sport of golf worldwide, state on their website that one of the marks of a good golf course is that it ‘sits inclusively within the local environment and adds to the landscape of the vicinity’. TIGLS is built on the graveyard of a SSSI and does not achieve this marker and so it is not a good golf course. Two keen golfers unlikely to acknowledge this had a very public fallout in the years that followed the development of TIGLS: Donald Trump and Alex Salmond have been quoted in various news stories insulting one another personally, particularly following Trump’s unsuccessful appeal in the Supreme Court against a decision granting permission for the development of an offshore windfarm within sight of Menie.
Ensuring habitat protection laws are enforced successfully requires available checks and balances throughout the procedures governing development, just as can be expected with any statutory decision maker. These checks are not mean to curtail important investments, they curtail the potential for corruption or ineptitude of a decision-maker. For instance, in judicial review a decision maker can be challenged if there is a doubt that the processes that govern their decision making have not been adhered to. A judicial review is not a review of an outcome but a review into the lawfulness of the way in which a decision was taken. Judicial review was not available in this case. Had the planning authority taken the decision themselves then s47 of the Town and Country Planning (Scotland) Act 1997 would have allowed TIGLS to appeal. However, S46(7) reads, ‘’The decision of the Secretary of State on any application referred to him under this section shall be final’. A statutory appeal option which would function in a very similar way to judicial review would mean that the powers granted by statute to the secretary of state would have been significantly more accountable. This accountability may be made available at the expense of cost-effectivity and timeliness (though not necessarily), however the democratic principle is perhaps the single most admirable principle a government process can aim to achieve and the availability of a statutory appeal would underscore this aim. Should one of the parties interested from the outset (such as SNH or the RSPB) have had the option, as well the legal standing, to bring about a statutory appeal it would have been intriguing to see how the case might have developed differently given the ministerial impropriety.
The isolated events at Menie are a testament to the laws protecting our habitats. The events are also useful for demonstrating that the stance which takes nature and development and pitches them as dichotomous interests does not serve to protect our rarest and most treasured habitat. Pitch one against the other and the potential that the conservation effort loses out entirely thanks to the fallibility of a human-led process is very likely. Trump used this stance to his own gain but he also used his unusual sums of money to manipulate the situation. Property rights are an exceptionally strong social construct and big money plans need to be met with compromise to achieve outcomes favourable to the conservation cause (the question of what these are and why are questions worth asking but best explored in detail elsewhere). The destroyed dunes at Menie will undoubtedly haunt conservationists. These butchered dunes are subject of conversation in Scotland about how the government dealt with the development. The subject was divisive; if viewed reasonably it could yet unite. Knowing that a golf course cannot be world class when it fails to care for the part of the world on which it is built is a fantastic example of how consideration for our environment can be incorporated into all aspects of life. Choosing decision-makers who know and think like this is a privilege of democracy. If our legal processes are honest about the fallibility of man there is hope that the destruction of Menie remains as rare as the dunes themselves.