Owners of Aberdeenshire farm fail in challenge of council notice ordering reduction of wind turbine noise

It was argued by Frank A Smart & Son Ltd that the notice was invalid as it failed to specify what the legal nuisance complained of amounted to, and that the sheriff who considered the validity of the notice had erred in finding it to be valid.

The appeal was heard by Sheriffs Principal Donald Murray and Craig Turnbull along with Appeal Sheriff Nigel Ross. The appellant was represented by Garrity, advocate, and the respondent by Campbell QC.

Complete cessation

In 2015, the respondent granted the appellant planning permission for two wind turbines at Easter Tolmauds farm in Torphins following an appeal. No comments were made in the initial report of the council’s environmental health officers in respect of any noise issues from the proposed development; however, the appointed reporter in the appeal process acknowledged that nearby houses may experience a small amount of noise.

The turbines were erected in 2016 and commenced operation that September. A formal abatement notice under section 79 of the 1990 Act was issued on 23 July 2020 ordering the appellant to reduce the noise levels of the turbines by 14 August 2020. The notice was appealed to the sheriff, with the appellant averring that the notice was invalid and had not sufficiently identified the circumstances giving rise to the alleged notice.

The sheriff rejected the appellant’s preliminary pleas and held that the respondent had made sufficient averments to discharge the burden of proof if they were proved. Counsel for the appellant submitted that the sheriff had misdirected himself in applying the test for validity, in that he had taken into account submissions from the respondent that innovated and expanded on the terms of the notice itself, which was insufficiently specific.

It was further submitted that without knowledge of what the appellant had to achieve by way of abatement, the only certain way of complying with the notice was to cease operation of the turbines. Where a wind turbine was operating without any breach of a valid planning condition the abatement notice was invalid if it is in terms which require complete cessation of operations as the only means for compliance.

Senior counsel for the respondent submitted that the appellant had been disingenuous as to the terms and quality of the notice. The concept of “nuisance” was a flexible concept which could be understood by the reasonable man in the context it was said to arise in. There was no doubt that the effect of the notice was that the noise level of the turbines had to be reduced.

Inherent flexibility

Delivering the opinion of the court, Sheriff Principal Murray began: “We accept the appellant’s submission that to be valid the abatement notice must set out with sufficient clarity what is complained about. We do not accept however that the sheriff erred in the manner suggested. The notice identified that there is noise coming from the turbines and required the appellant to take steps to reduce the noise.”

He continued: “On that formulation we have no difficulty in identifying, on a plain reading, that the nuisance alleged by the respondent is the volume and character of the noise generated by the wind turbines. A plain reading also informs the reader that the appellant is required to abate the noise to avoid the continuation of the nuisance.”

Addressing the appellant’s arguments on specificity, he said: “The authorities establish that the method of achieving abatement may, in appropriate circumstances, particularly where the cause of the nuisance is outside the knowledge of the affected party, be left to the perpetrator to identify and execute. There can be compelling reasons to leave the choice of the means of abatement to the perpetrator, not least that some methods may be considerably cheaper and less inconvenient than others.”

He added: “We note the inherent flexibility in the words ‘abate’ and ‘nuisance’. The notice does not, as the appellant fears, force shutting down of the turbines on the basis that it is the only guaranteed method of stopping the noise. Not all noise amounts to a nuisance. Abatement does not necessarily require elimination.”

Sheriff Principal Murray concluded: “The assessment of whether the noise constitutes a nuisance is, a matter of fact and degree. We do not accept the contention of the appellant that further specification they suggest is required. The averments of the respondent are sufficient, to allow the case to proceed to proof. The appellant has fair notice of the case being made against it. We shall therefore refuse the appeal.”

Lords committee: Government transparency needed for effective parliamentary scrutiny of trade agreements

In the letter, published today, the committee calls on the government to rethink its rejection of key proposals for how the committee and the government could work to enable effective scrutiny of treaties, including trade agreements.

The letter highlights that commitments made by a minister at the despatch box appear to have been watered down. These included a promise to facilitate a debate on negotiating objectives if requested by the committee. The minister also stated that he could not envisage a new future trade agreement proceeding to ratification without a parliamentary debate having first taken place. The government now describes these commitments merely as a “firm ambition”, indicating that undefined “other factors” may have to be considered. If government commitments made at the despatch box cannot be relied on, this would be of great concern, not just to the committee, but to both Houses.

The letter calls for commitments made by ministers on the scrutiny of trade deals to be documented, providing a clear framework to allow agreements to receive consistent scrutiny. This has the support of the House of Commons International Trade Committee.

In its report, the International Agreements Committee had also asked to be given notice of when other, non-trade related agreements were about to be laid in Parliament – a proposal the government has refused.

The committee additionally recommended that substantive changes to international agreements and any significant political deals called “memoranda of understanding” (MoU) be deposited with Parliament for scrutiny. The letter emphasises that without predictable criteria for such amendments or MoUs to be laid before Parliament, scrutiny will effectively become optional.

Baroness Hayter, chair of the House of Lords International Agreements Committee said: “I strongly urge the government to reconsider its response to my committee’s report Working Practices: one year on, on the scrutiny of international agreements.

“Arrangements for scrutiny need to be clear and transparent. The watering down of previously made commitments on trade deals and the rejection of pragmatic recommendations, such as that there should be a single written record of all commitments in respect of scrutiny of trade agreements, is deeply concerning.

“The government also refused to address the absence of clear criteria for when Memoranda of Understanding and amendments to existing treaties should be deposited in Parliament. Or even to give the committee advance notice of pending agreements.

“When the government does not constructively engage with committees, the effect is that parliamentary scrutiny becomes less effective and democracy suffers.

“We invite the government to provide assurances that previous commitments will be respected and recorded in an exchange of letters; and for it to engage constructively both with our committee and with any other relevant parliamentary committees. Doing so will lead to stronger, fairer international agreements, to the benefit of all.”

Angus Brendan MacNeil MP, chair of the House of Commons International Trade Committee said: “My committee previously endorsed the International Agreements Committee’s Working Practices report, and we were very disappointed to see the government’s rejection of the recommendations and our additional suggestions.

“The government must stay true to the commitments it has made to Parliament, and we must be able to trust that ministers will not walk back on their promises down the line. Our committees play a vital role in the scrutiny of new free trade agreements, and to do this thoroughly, we need to know future scrutiny arrangements in advance – it is not enough to say “now is not the right time”.

“I will shortly be writing to the Secretary of State for International Trade to make these points more fully, emphasising our support for the recommendations and the need for government to enable strong scrutiny arrangements to be planned and delivered.”

Richard McMeeken: Interpreting commercial contracts in Scotland

The Supreme Court’s case law in this area (Rainy Sky SA v Kookmin Bank [2011] UKSC 50; Arnold v Britton [2015] UKSC 36; Wood v Capita Insurance Services [2017] UKSC 24) is applied in Scotland (Hoe International v Andersen & others 2017 SC 313; and Ashtead Plant Hire v Granton Central Developments 2020 SC 244) and, therefore, on the face of it, there is no difference in approach. 

The exercise is an objective one with the court seeking to understand what the parties meant by the language that they chose to use. The exercise is both textual, in that primacy is given to the natural and ordinary meaning of the words of the contract and, indeed, if the words are unambiguous, the court must apply them; and contextual, in that, where the words are ambiguous, the court can give greater weight to external factors such as the purpose of the agreement, the factual background and commercial common sense.

However, the weight given to different parts of the principled test can be very different depending on the constitution of the court and, in particular, some judges continue to give weight to considerations of commercial common sense which can be difficult to reconcile with the warnings given by the Supreme Court in Arnold. 

In Grove Investments Ltd v Cape Building Products [2014] CSIH 43 the phrase “to pay the landlords the total value of the schedule of dilapidations” was interpreted as meaning that the landlords should only recover their actual loss, largely for reasons of commercial common sense. While Grove was pre-Arnold, it is cited with approval in the more recent case of Ashtead while, in Hoe International, the court questions whether the principles elucidated in Arnold are really of general applicability. Indeed, the court in Grove explains that because judges have considerable commercial experience, they “will usually be in a good position to decide what is commercially sensible”.

While the court expressly says that it must be sensitive to the possibility of “trade offs and bad bargains”, the broader sentiment seems out of tune with those expressed by the Supreme Court and other experienced commercial judges. In particular, Lord Reed in Credential Bath Street v Venture Investment Placement explains that a judge ought to guard “against excessive confidence that [his] view as to what might be commercially sensible necessarily coincides with the view of those actually involved in commercial contracts”. Lord Neuberger warns of similar risks in Skanska Rasleigh Weatherfoil Ltd v Somerfield Stores Ltd [2006] EWCA Civ 1732 saying that “Judges are not always the most commercially-minded, let alone the most commercially experienced, of people, and should, I think, avoid arrogating to themselves overconfidently the role of arbiter of commercial reasonableness or likelihood”.

Other judges have made the point extra-judicially. In his Harris Society Lecture in 2017 entitled “A Question of Taste: The Supreme Court and the Interpretation of Contracts”, Lord Sumption observed that “judges are not necessarily well-placed to determine what commercial sense requires” and that their “notions of commercial common sense tend to be moulded by their idea of fairness. But fairness has nothing to do with commercial contracts. The parties enter into them in a spirit of competitive co-operation, with a view to serving their own interest. Commercial parties can be most unfair and entirely unreasonable, if they can get away with it. The problem about measuring their intentions by a yardstick of commercial common sense is that in practice it transforms the judge from an interpreter into a kind of amiable compositeur. It becomes a means of saving one party from what has turned out to be a bad bargain. The question is no longer what the parties agreed. It is: “what would they have agreed if they were the objective, just and fair-minded people that in practice they are not”. Lord Sumption was equally reluctant to speculate about where commercial common sense lay in practice (Krys v KBC Partners LP [2015] UKPC 46).

The problem with commercial common sense is that it can be used to support a great many arguments and even agreements drawn up by experienced lawyers may fail to properly reflect precisely what one or other party wanted. An approach which relies upon the primacy of the words leads to greater certainty for the parties to such a contract, but it is still the case, in Scotland at least, that the words are not always given the primacy they deserve and different judges apply the principled test very differently (see the difference between the recent decisions of Lady Wolffe in Paterson v Angelline (Scotland) Limited [2021] CSOH 101 and Lord Clark in Scottishpower Energy Retail Limited v Equorium Property Company Limited [2021] CSOH 98) or Lord Braid in Dragados (UK) Limited v DC Eikefet Aggregate AS [2021] CSOH 117).

Richard McMeeken is a partner and solicitor advocate at Morton Fraser. This article forms part of the firm’s annual Litigation in Scotland report.

Tumbling Lassie returns: Anti-slavery charities to benefit from operetta performance

Dandie Dinmont is the story of the famous Borders farmer of that name in Sir Walter Scott’s Guy Mannering. This operetta was written for the Borders Book Festival and is performed in Edinburgh for the first time in this programme. A highlight of this colourful and romantic operetta is a children’s chorus sung by local Edinburgh children entitled “Make us a pie, Mither!”

The Tumbling Lassie tells the extraordinary true story of a child gymnast who was exploited by a late seventeenth-century showman, who claimed he “owned” her, until she was rescued by a warm-hearted woman from the Borders. This led to an important case in the Court of Session in Edinburgh in 1687, in which the court ruled that slavery was not legal in Scotland. This moving and thought-provoking operetta features a performance by a real contemporary Scottish gymnast. 

The Tumbling Lassie Committee are six advocates who raise awareness and funds for charities fighting against modern slavery and people trafficking and to help survivors in Scotland and beyond. The Committee, established in 2015, is named in honour of the case featured in the second operetta. 

Committee member Alan McLean, QC, said: “As the two-years’ winter caused by Covid-19 seems, at last, to be thawing, it is exciting to begin to be able to meet up again in numbers. We are delighted that this means this long-delayed performance of the Tumbling Lassie and Dandie Dinmont can now go ahead. It should be a charming and most enjoyable evening and, thanks to the generosity of all involved, every penny raised will go to our charities.”

The performance will take place on Sunday 10 April at 7.30pm at the Queen’s Hall in Edinburgh. 

For more information and to buy tickets click here.

Big boost for NQ salaries at DLA Piper

London NQs will be given an eight per cent pay rise, from £88,000 to £95,000.

Those outside London will see their pay go up by 35 per cent – from £48,000 to £65,000.

Liam Cowell, DLA Piper’s UK managing partner said in a statement: “The firm has conducted an interim salary review for our UK lawyers that was effective as of January 2022.

“This is a first step towards implementing a new, more holistic and values-based approach to pay decisions, aimed at fairly rewarding the contribution of our lawyers across all locations. It is an interim review and our regular annual salary review will also take place in July of this year.”

Colston Four barrister Blinne Ní Ghrálaigh on the cases that shaped her

By Rosemary Gallagher

Barrister Blinne Ní Ghrálaigh of Matrix Chambers in London is no stranger to high-profile or controversial cases. And one of her most recent trials is no exception. Ms Ní Ghrálaigh was the sole woman barrister to defend one of the ‘Colston Four’, representing the only woman defendant, Rhian Graham. The Colston Four were, of course, the protesters who were cleared in January 2022 by a jury in Bristol Crown Court of criminal damage for toppling a statue of the slave trader Edward Colston. The statue was brought down and thrown into Bristol harbour during a Black Lives Matter protest in June 2020.

While the Colston Four did not deny toppling the statue, they relied on a number of “lawful excuses” to the charge of criminal damage. Ms Ní Ghrálaigh, the Irish barrister, was able to draw on her previous experience, including acting for anti-arms fair protesters in the case of Director of Public Prosecutions v Ziegler. This was a seminal Supreme Court case, which clarified that freedom of speech and freedom of assembly rights could provide a defence to a protest-related criminal charge.

The Colston Four relied on the same “lawful excuse” defence as in Ziegler. Ms Ní Ghrálaigh and other legal representatives argued that a conviction for criminal damage would not be a proportionate restriction of the defendants’ protest-related rights in the context of the case. They also asserted a defence of “belief in consent”, on the basis that they honestly believed that the citizens of Bristol – who had erected the statute, and on whose behalf it was held on trust by Bristol City Council – would have consented to the statue’s removal.

They further relied on the defence of the prevention of crime, on the basis that they honestly believed that the display of the statue of the slaver – responsible for the enslavement of an estimated 84,000 black people and the deaths of 20,000, including many young children – with a plaque celebrating him as one of “the most wise and virtuous sons” of Bristol was criminally offensive, and constituted an “indecent display”.

Other matters the jury had to consider were whether the bronze statue had been damaged in the toppling, and if so, whether the Colston Four had intended to damage it in removing it.

In a well-publicised verdict – and another victory for Ms Ní Ghrálaigh – the jury in Bristol acquitted the protestors. While the Attorney General is reportedly considering whether to refer the case to the Court of Appeal for clarification on points of law, the jury’s not guilty verdict cannot be overturned.

Ms Ní Ghrálaigh says she was brought up by her “wonderful” mother, together with her older sister whom she describes as her “rock”. The family ultimately settled in London, with extended trips back to Ireland. The Irish connection remains strong: she has called to the Bars of Ireland, North and South, as well as to the Bar of England and Wales.

When asked about her route to becoming a barrister, Ms Ní Ghrálaigh explains that she didn’t set out specifically to join the legal profession. She says: “I didn’t always want to be a lawyer, but I can’t say it was a surprise to anyone when I became one – I’ve never exactly shied away from a debate or an argument. But it wouldn’t really have crossed my mind growing up; maybe because I didn’t know any lawyers in my life. We had a lot of teachers in the family but no lawyers.”

However, she was intrigued by the legal process from a young age. During her early teens in London, Ms Ní Ghrálaigh would visit court to follow criminal trials. “When I was about 13 or 14, I used to take myself off to the Old Bailey in the school holidays to sit in the public gallery. We didn’t have a television for a good while so I suppose it was a bit like real life Rumpole of the Bailey for me,” she explains. “I found it fascinating. But even then, I never envisaged myself in that role until much later. I went on to study languages – French and Latin – at university. The law studies only came after. But as it turns out, French and Latin are the two languages of international law – one of the main areas I specialise in. So, in many ways I couldn’t have planned it better if I’d tried.”

Something that she says had a big impact on her life was discovering the story of Majella O’Hare, a young girl of 12 from County Armagh who was shot in the back and killed by a British soldier in 1976.

Ms Ní Ghrálaigh says: “I was 12 years old myself when I found a pamphlet about Majella O’Hare in one of my mother’s bookcases. I saw the picture of the young girl on the front, and saw her age, and I read it from cover to cover. I read about how she died in the arms of her father after he heard the shot and went running to her. I think it was her age, the fact that nobody had been held accountable, and the circumstances of the killing – that she had been shot as she walked along a country road with a group of other children, going to Confession at the local chapel – that particularly outraged my convent schoolgirl sensibilities at the time.”

Ms Ní Ghrálaigh went to her mother in tears and asked how such a terrible thing could be allowed to happen. Her mother’s response to her young daughter was: “Do something about it”. Ms Ní Ghrálaigh says: “I often think about my mother’s response. Her words struck a very profound chord. And I’ve hung on to that pamphlet over all these years. It’s now framed above my work desk as a reminder of what brought me here.”

After finishing her language studies, Ms Ní Ghrálaigh decided that law was for her, and she worked for a couple of years at an American-based think tank to save the money to do a legal conversion course. After that, she volunteered for an NGO, followed by a job as a paralegal for a human rights firm in London and continued to work there part-time while she studied law, on the solicitor track. Although she had the promise of a solicitor’s training contract, she decided to leave her job and studies when somewhat ‘out of the blue’ she was offered a position working as a legal observer on the Bloody Sunday Inquiry in Northern Ireland. The inquiry was investigating the events of 30 January 1972, when British soldiers shot dead 14 unarmed civilians and wounded many others during a civil rights march in the Bogside area of Derry.

She made the move from London to Derry, spending a year as a legal observer and another year working for a solicitor’s firm representing many of the families of the Bloody Sunday dead and the wounded.

“It was an immense privilege to be part of that historic legal process, and to get to represent and know the families, a number of whom remain friends to this day,” she says. “Their unwavering dignity, resilience and steadfastness in seeking truth and justice over so many years was and remains utterly inspirational.”

She adds: “That time also turned out to be career-changing for me. During the course of the inquiry, having the opportunity to watch and learn from some of the brilliant barristers involved, I decided that the bar was where I wanted to be.”

Ms Ní Ghrálaigh returned to London to pursue her legal studies, this time down the barrister path. Asked about her choice of specialist areas, she says: “Given what drew me to the law, I was never going to do corporate law or anything like that. Human rights law and international law are very much at the core of all the work I do. But beyond that, it is in some ways the areas of law that have picked me rather than me picking them”.

She adds: “That being said, given that one of my earliest memories is of being at a protest in my buggy, it is perhaps no wonder that protest law is one of the areas I ended up specialising in!”

As well as the Bloody Sunday Inquiry having a major impact on her, Ms Ní Ghrálaigh points to other momentous points in her career. These include presenting to the International Court of Justice on behalf of Croatia in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia). She is equally proud of less high-profile cases. They include securing the acquittal in a small court in Burnley of a Methodist minister and Quaker who had attempted to disable war planes bound for Saudi Arabia to be used in the bombing of Yemen. “It’s not the illustriousness of the court that makes the case, it’s the legal arguments and the clients,” she explains. “It is one of the real privileges of my practice to get to work with such committed lay clients and solicitors as I do.”

In terms of other significant moments in her career, Ms Ní Ghrálaigh highlights being appointed a visiting fellow at Harvard Law School a few years ago, which she describes as a “fantastic opportunity to really immerse myself in legal learning”. She also recalls a legal fact-finding mission she undertook to Gaza in 2009, immediately after Israeli military operation ‘Cast Lead’. “The level of devastation and trauma I witnessed in Gaza is hard to put into words. It was one of the experiences of my professional life that has marked me the most,” she says.

She has been with Matrix since undertaking her pupillage there in 2005. She is well aware of the challenges facing the profession. “The criminal bar in England and Wales is in a particularly sorry state. There’s chronic underfunding, massive backlogs in the courts and barristers leaving the profession in droves”. Another significant concern she highlights is what she describes as “the increasing attempts by those in power to undermine human rights protections and access to justice”. “That should be a real worry not just to lawyers but to anyone paying attention at the moment,” concludes Ms Ní Ghrálaigh.

ETN & CIOT webinar: Update on financial markets and pensions analysis with Brewin Dolphin

• Macro themes and risks in 2022, as well as reasons to remain optimistic
• Outlook for interest rate trajectory
• How do we navigate more uncertain markets in 2022?
• In terms of pensions, use of the tapered annual allowance and how carry forward can help those still affected by the taper with the aim of:
• Understanding the tapered annual allowance rules
• Understanding how carry forward works
• Understanding how carry forward interacts with the taper rules

This event is sponsored by Brewin Dolphin and presented in conjunction with Terra Firma Chambers. There is no charge for attendance however registration is necessary. To sign up, please click here.

The seminar has been accredited by the Faculty of Advocates as contributing 1 hour of CPD (30 minutes each Practice Development and Substantive Law) for its own members and is eligible for a similar award from the Law Society for the solicitor branch of the profession.

Thorntons trains new mental health first aiders

The firm invested in the training to place a stronger focus on mental health and wellbeing as society emerges from the pandemic.

Shirley Phillips, Thorntons’ director of people, said: “Our people are at the heart of our business and investing in their wellbeing is vital for our continued growth and success.

“Even before Covid, we had identified the potential benefits of having Mental Health First Aid skills throughout the business. When we asked for volunteers to become Mental Health First Aiders I was bowled over by the response - so many of our colleagues wanted to get involved.

“We now have a dedicated network of Mental Health First Aiders, trained in active listening, who can support colleagues in confidence as well as supporting them in getting any additional help they may need.”

All participants successfully achieved a Level 2 in First Aid for Mental Health Award. This qualification provides learners with knowledge that can help them recognize a wide range of mental health conditions, help them to start supportive conversations as well as helping to signpost someone to the correct professional help.

The training was given by Supportive Solutions, a training provider registered with Nuco Training Ltd.

Course participant Lucy Rourke, conveyancing paralegal, said: “I am looking forward to working with my colleagues on a closer level to provide mental health first aid. No two struggles are the same and I really am proud to be part of a firm that enable us to have the opportunity to learn and develop ways to help those around us.”

Digby Brown donates 285 days for 285 volunteers

As the personal injury firm has 285 employees it means as many as 285 days can be used to help good causes.

Although the firm already helps around 20 charities, staff will be allowed to use their free day to help any charity or cause they choose.
Staff who donate their time also don’t need to engage in fundraising efforts – they can offer support like cleaning kennels, collecting goods from doorsteps or assisting with phone befriending services.

The new scheme builds on the existing efforts of the firm that has already helped it win countless charity and community awards in the last few years.

Fraser Oliver, chief executive of Digby Brown, said: “For years our people have strived to fundraise for causes close to their hearts. But we know first-hand that money only goes so far. It can only do so much.

“People who need help or support need something more – and that is people. Actually being there in a hands-on manner offers the kind of support these services – and their service users – actually need.

“We are therefore proud to work alongside Social Good Connect as we roll out our employee volunteering programme.”

The employee volunteering programme was set up alongside Social Good Connect – a third sector enterprise aimed at connecting employees with volunteering opportunities.

Last month it was confirmed Digby Browns’ seven local offices raised over £48,000 for their charity partners.

Quote of the day

An obstinate man does not hold opinions, but they hold him; for when he is once possessed with an error, it is, like a devil, only cast out with great difficulty.

Joseph Butler

And finally… Europhile

Luca Morini, who has been defrocked by the Vatican, was sentenced to seven-and-a-half years’ imprisonment at a court in Massa Carrara in northern Italy last week.

Thought to be a man of piety from the Tuscan town of Pontasserchio, he spent his money on the services of young male sex workers. He was found guilty of extortion against a former bishop in addition to being convicted of pretending to be a magistrate while hiring prostitutes.

The court heard he frequently asked his parishioners for financial contributions, which they thought were for blessings and for Morini to officiate at funerals or help the poor and sick.

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