Proposals for modernising procedures for consenting electricity infrastructure in Scotland have been published by the Department for Energy Security & Net Zero. The aim is "making considered decisions as efficiently as possible".
Background
There are significant differences in the procedures for consenting electricity infrastructure in Scotland, England and Wales.
Even within each country, there are different procedures, depending on the size of the project, and whether it is on- or off-shore.
In Scotland, smaller on-shore electricity projects use the consenting procedures in the Town and Country Planning (Scotland) Act 1997. Those procedures were modernised by the 2006 and 2019 Acts.
The equivalent procedures for the Scottish Ministers to consent offshore and larger on-shore projects have not been reviewed since those were introduced in the Electricity Act 1989.
As part of the Onshore Wind Sector Deal, the Scottish Government aim to determine applications under section 36 of the Electricity Act for new on-shore wind farms within 12 months if there is no public inquiry or 24 months if there is an inquiry. The statistics for 2017-2022 show the need for efficiencies to achieve that target.
The proposals
Pre-application requirements – many applicants already carry out pre-application consultation. The proposal is to introduce a standardised procedure for this.
Statutory consultees – measures to help them respond to applications in a timely manner and access relevant skills and resources to do so
Information requirements - expanding the mandatory information requirements for applications
Amendments to applications - setting a point in the application process at which no further amendments could be made
Public Inquiries – removing the trigger for an automatic public inquiry process where a planning authority objects to the application; instead the Scottish Government reporter will decide what procedure is appropriate (which is what already happens in planning appeals)
Variations – introducing a statutory process for varying consents for network projects, and powers to enable the Scottish Government to modify, suspend or revoke consents in light of changes in environmental circumstances, relevant technological changes or to correct errors in consents.
Necessary wayleaves – Introducing a fee for necessary wayleave applications.
Legal challenges – introducing a 6 week time limit for legal challenges to consent decisions (currently 3 months)
Omissions
The proposals do not include:
- removing the right of a planning authority to trigger further procedure for a large on-shore project, by submitting a formal objection
- any change to the 50MW threshold, which determines which consenting procedure applies to on-shore generation projects – that was included in a Scottish Government consultation earlier this year
- removing battery storage projects from the Electricity Act process – in Scotland battery storage is treated as electricity generation, in contrast to the position in England
Comments
The proposals might not deliver significant efficiencies, as some are formalising what already happens in practice.
While many of the principles are relatively uncontroversial, some of the proposals can be criticised for:
- Not copying the existing procedures in the Planning Act – that would be more efficient, because it avoids the need for new procedures to be rolled out
- Not having the same procedures for on- and off-shore projects
- Adding to the workload of regulators and statutory consultees
It might not be possible for every aspect of modernisation to comply with those aspirations, but justification needs to be shown for that, which is lacking in the consultation paper.
Contributors
Partner
Senior Associate
