The Scottish Government have published a consultation on increasing the current threshold for onshore electricity generating stations to be considered by local authorities. Responses are due by 27 March 2026.
Current position
At present, the local authority planning application procedures apply to onshore electricity generation projects in Scotland of 50MW or less. Above that threshold, projects are consented by the Scottish Ministers, through the Energy Consents Unit, under section 36 of the Electricity Act 1989 and the deemed planning permission provisions in the Town and Country Planning (Scotland) Act 1997.
Background
The consultation paper mentions that the volume of applications made to Scottish Ministers has more than quadrupled in the last 20 years. In previous decades applications for wind farms of 20-30 turbines were decided by planning authorities, but the much greater generation capacity of taller wind turbines means that applications for 8 or 9 turbines are likely to exceed the 50MW threshold and require determination by Scottish Ministers. Of course, the increased volume of applications is not itself a reason to change the threshold.
Purpose of section 36
The 1989 Act is from a different era (almost 40 years ago!). It was the start of privatisation of the electricity industry in the UK, at a time when electricity was mostly generated from large, base-load power stations. It pre-dates commercial wind farms – Hagshaw Hill, the first one in Scotland, did not start operation until 1995.
It is likely that in 1989 it was felt appropriate for Ministers to make decisions on consenting large power stations, given their strategic significance.
A similar rationale underlies the Development Consent Order (DCO) process in England, which gives Ministers powers to consent Nationally Significant Infrastructure Projects (NSIPs). That has been described as a streamlined process which is faster and fairer for applicants and communities. A key advantage is that a DCO grants all necessary permissions in one order, something which a section 36 consent cannot do.
Local decision-making
Restricting the section 36 procedure to strategically significant renewables projects would be consistent with the preference for decisions to be made at a local level:
- The Partnership Agreement between the Scottish Government and Scottish local authorities includes the maxim “local by default, national by agreement”.
- Although the Scottish Ministers have power to call-in planning applications for their decision, that power is exercised “very sparingly”
There are resource consequences of more applications being decided by local authorities. For example:
- The local authority is currently a consultee on the section 36 application, which involves them in a considerable amount of work – how much more work would be involved if the authority was deciding the application rather than responding as a consultee? The discussion of application fees in the Business and Regulatory Impact Assessment states that local authorities have indicated limited additional resource is required to determine applications when compared to the significant work they already undertake as statutory consultees for section 36 applications
- Although the consultation paper refers to an 82.8% approval rate for renewables planning applications in 2024/25, a report by Eversheds Sutherland indicates local authorities refused twice as many wind farm applications as the Scottish Ministers since NPF4 was introduced. That suggests more research is required on whether deciding more applications at the local level will result in more appeals, adding to the length of overall consenting timescales, and increasing pressure on DPEA resources (although the BRIA does note that could be offset by a reduction in the Electricity Act applications being referred to DPEA following a planning authority objection)
Timescales for decision
The paper notes there is a likelihood that average timescales for section 36 decisions will decrease in coming years, and that work is ongoing to improve planning authority timescales.
What the paper doesn’t mention is that the entire focus of the Ministers’ Energy Consents Unit (ECU) is on deciding electricity applications. Local authority planning officers deal with a variety of planning applications, and do not necessarily have as much expertise and experience dealing with electricity applications.
New threshold?
The on-line consultation response form includes the following questions:
- should there be a single threshold applicable to all technologies?
- what threshold should apply - 50MW (ie. no change); 100MW; 150MW?
There is a 100MW threshold for on-shore wind and solar projects in England, but all battery energy storage applications are decided at the local level.
Comment
In the 2024 consultation exercise, planning authorities, communities and third sector groups were generally in favour of change, whilst industry, including property and the land management sector, represented the majority of those not in favour. It will be interesting to see if this consultation results in a similar outcome.
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