Item11 Section36ApplicationsConsultationReport

Item 11 Plan­ning Com­mit­tee 13 March 2026 Page 1 of 5

For decision

Title: Onshore elec­tri­city gen­er­a­tion: Con­sulta­tion on increas­ing the threshold for applic­a­tions under the Elec­tri­city Act Pre­pared by: Dav­id Berry, Head of Plan­ning and Chief Plan­ning Officer

Pur­pose

This paper presents the Cairngorms Nation­al Park Authority’s pro­posed response to a con­sulta­tion on increas­ing the 50MW threshold which determ­ines wheth­er applic­a­tions for onshore elec­tri­city gen­er­a­tion devel­op­ments are determ­ined by the rel­ev­ant plan­ning author­ity or by Scot­tish Ministers.

Recom­mend­a­tion

The Com­mit­tee is asked to: a) Approve the Park Authority’s pro­posed response to the con­sulta­tion, as out­lined in para­graph 14 of this report.

Back­ground and stra­tegic context

1. In Scot­land, applic­a­tions for onshore elec­tri­city gen­er­a­tion devel­op­ments are con­sidered through two dif­fer­ent routes. Applic­a­tions for devel­op­ments with gen­er­at­ing capa­cit­ies of 50MW or less are largely decided by plan­ning author­it­ies under the pro­vi­sions of the Town and Coun­try Plan­ning (Scot­land) Act 1997 (as amended). How­ever, the Scot­tish Min­is­ters are respons­ible for decid­ing applic­a­tions for elec­tri­city gen­er­a­tion devel­op­ments with capa­cit­ies exceed­ing 50 mega­watts (MW) under the pro­vi­sions of Sec­tion 36 of the Elec­tri­city Act 1989. These applic­a­tions are often referred to as ​‘Sec­tion 36 applic­a­tions’ and are made to the Scot­tish Government’s Energy Con­sents Unit (ECU). Where con­sent is gran­ted under Sec­tion 36 of the Elec­tri­city Act 1989, the Scot­tish Min­is­ters have powers under plan­ning legis­la­tion to grant ​‘deemed plan­ning permission’.

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1. Mem­bers will recall that the UK and Scot­tish Gov­ern­ments under­took a con­sulta­tion in late 2024 on pro­pos­als for reform­ing the con­sent­ing pro­cess under the Elec­tri­city Act 1989. Pro­posed reforms were iden­ti­fied to remove inef­fi­cien­cies whilst giv­ing com­munit­ies and stat­utory con­sul­tees mean­ing­ful oppor­tun­it­ies to influ­ence applic­a­tions for con­sents. The Park Authority’s response to that con­sulta­tion was agreed by Plan­ning Com­mit­tee on 13 Decem­ber 2024¹. Reforms have sub­sequently been included in the UK Government’s Plan­ning and Infra­struc­ture Act 2025, which received Roy­al Assent on 18 Decem­ber 2025.

2. The Scot­tish Min­is­ters also have powers to make changes to the type, char­ac­ter­ist­ics and capa­city of elec­tri­city gen­er­a­tion devel­op­ments which require con­sent under Sec­tion 36 of the Elec­tri­city Act. This would require an Order, which would need to be laid before the Scot­tish Parliament.

3. The Scot­tish Gov­ern­ment is now con­sult­ing on pro­pos­als to increase the cur­rent 50MW threshold for Sec­tion 36 applic­a­tion­s². Increas­ing the 50MW threshold would reduce the num­ber of applic­a­tions that have to be determ­ined by the Scot­tish Min­is­ters and trans­fer respons­ib­il­ity for determ­in­ing more applic­a­tions for elec­tri­city gen­er­a­tion devel­op­ments to plan­ning author­it­ies at the loc­al level.

4. The con­sulta­tion doc­u­ment out­lines that dur­ing the ²⁰²⁴⁄₂₅ fin­an­cial year, 64 plan­ning applic­a­tions for major elec­tri­city gen­er­a­tion devel­op­ments were determ­ined by plan­ning author­it­ies – 53 of these were approved and 11 were refused (82.8% approv­al rate). Dur­ing the same peri­od, 33 Sec­tion 36 applic­a­tions were determ­ined by Scot­tish Min­is­ters – 32 of these were approved and 1 was refused (96.9% approv­al rate).

5. The con­sulta­tion doc­u­ment also notes that dur­ing Q2 2025, there were 352 on-shore renew­able energy gen­er­a­tion devel­op­ments going through the plan­ning / con­sent­ing pro­cess in Scot­land. Of those, 320 had inform­a­tion about the gen­er­at­ing capa­city of the pro­posed devel­op­ment. The table over­leaf provides a break­down of the 320 pro­posed devel­op­ments based on gen­er­at­ing capa­city and determ­in­ing author­ity. It shows that just under 60% of the pro­posed devel­op­ments under con­sid­er­a­tion in Q2 2025 were being determ­ined by the rel­ev­ant plan­ning author­ity, with just over 40% being determ­ined by the Scot­tish Ministers.

¹ Item7ElectricityInfraConsentingPaper.pdf ² on-shore elec­tri­city gen­er­a­tion — con­sulta­tion on increas­ing the threshold for applic­a­tions under the Elec­tri­city Act

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Gen­er­at­ing capa­city	Cat­egory of devel­op­ment	Determ­in­ing author­ity	Num­ber of proposals
0 – 19.99MW	‘Loc­al’ devel­op­ment (Plan­ning Act)	Plan­ning authority	80
20 – 49.99MW	‘Major’ devel­op­ment (Plan­ning Act)	Plan­ning authority	109 (NB 32 of these had a capa­city of 49 – 49.99MW)
50 – 99.99MW	S36 devel­op­ment (Elec­tri­city Act 1989)	Scot­tish Ministers	64
100 – 149.99MW	S36 devel­op­ment (Elec­tri­city Act 1989)	Scot­tish Ministers	39
150 – 199.99MW	S36 devel­op­ment (Elec­tri­city Act 1989)	Scot­tish Ministers	5
200MW upwards	S36 devel­op­ment (Elec­tri­city Act 1989)	Scot­tish Ministers	23
Total pro­jects			320

1. Scot­tish Gov­ern­ment stat­ist­ics show that the volume of Sec­tion 36 applic­a­tions has more than quad­rupled over the last 20 years, with 15 applic­a­tions made between 2001-03 and 70 applic­a­tions made between 2021 – 23. This increase is largely due to tech­no­lo­gic­al advances over the 20-year peri­od. For example, wind farm pro­pos­als today may include tur­bines great­er than 180m in height and with a gen­er­at­ing capa­city of 5 – 7MW each. This means that a wind farm pro­pos­al con­sist­ing of just 8 or 9 tur­bines is now likely to meet the 50MW threshold and require determ­in­a­tion by the Scot­tish Min­is­ters. In con­trast, applic­a­tions sub­mit­ted in the early part of the 20-year peri­od were gen­er­ally for smal­ler tur­bines with lower gen­er­at­ing capa­cit­ies – there­fore sig­ni­fic­antly more tur­bines were required to reach the threshold for determ­in­a­tion by the Scot­tish Ministers.

2. As a res­ult of the sig­ni­fic­ant increase in the volume of Sec­tion 36 applic­a­tions, con­sid­er­a­tion is being giv­en to wheth­er the 50MW threshold remains appropriate.

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1. Ini­tial engage­ment under­taken by the Scot­tish Gov­ern­ment shows that some developers value the stra­tegic over­sight and con­sist­ency which can be afforded where decision-mak­ing is cent­ral­ised and more decisions on elec­tri­city gen­er­a­tion pro­jects are taken by Scot­tish Min­is­ters. Con­versely, the ini­tial engage­ment shows that rep­res­ent­at­ives of the pub­lic sec­tor, third sec­tor and com­munity groups gen­er­ally appear to favour increas­ing the exist­ing 50MW threshold to enable more decisions to be taken by plan­ning author­it­ies in the future. Reas­ons cited for this include great­er loc­al autonomy and com­munity involve­ment in decision mak­ing, primacy of the devel­op­ment plan under plan­ning legis­la­tion, and addi­tion­al fee income for plan­ning authorities.

2. The cur­rent con­sulta­tion is seek­ing form­al views on wheth­er the exist­ing 50MW threshold should be increased. It sets out poten­tial threshold options of 100MW or 150MW, as well as the option of intro­du­cing dif­fer­ent thresholds for dif­fer­ent energy gen­er­a­tion technologies.

Pro­posed con­sulta­tion response

1. There have been rel­at­ively few applic­a­tions for elec­tri­city gen­er­a­tion devel­op­ments in the Nation­al Park. This is likely due to the sig­ni­fic­ant land­scape and nat­ur­al her­it­age sens­it­iv­it­ies with­in the Nation­al Park, and because plan­ning policies in Nation­al Plan­ning Frame­work 4 and the Loc­al Devel­op­ment Plan include a pre­sump­tion against large scale wind tur­bines and wind farms with­in the Park. The applic­a­tions sub­mit­ted to date have been of a rel­at­ively mod­est scale in terms of gen­er­at­ing capa­city and have been determ­ined through the main­stream plan­ning pro­cess (with the vast major­ity being called-in for determ­in­a­tion by the Park Authority).

2. How­ever, a sig­ni­fic­ant num­ber of Sec­tion 36 applic­a­tions for elec­tri­city gen­er­a­tion devel­op­ments in excess of the 50MW threshold have been sub­mit­ted for sites just out­side the Nation­al Park. These have primar­ily been applic­a­tions for wind farms. An assess­ment of form­al applic­a­tions and pre-applic­a­tion enquir­ies since 2018 shows that approx­im­ately 43% had a gen­er­at­ing capa­city of 50 – 99.99MW, 26% had a capa­city of 100 – 149.99MW, and 30% had a capa­city of more than 150MW.

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1. On this basis, an increased threshold of either 100MW or 150MW (as out­lined as poten­tial options in the con­sulta­tion doc­u­ment) would clearly have res­ul­ted in sub­stan­tially more of the applic­a­tions just out­side the Nation­al Park being determ­ined by the rel­ev­ant plan­ning author­ity rather than the Scot­tish Min­is­ters (although the Park Author­ity would still only have been a con­sul­tee to the decision-mak­ing process).

2. Whilst the Park Author­ity is unlikely to see a sig­ni­fic­ant dir­ect impact as a res­ult of any increase to the threshold for Sec­tion 36 applic­a­tions, it is nev­er­the­less recom­men­ded that a con­sulta­tion response be sub­mit­ted to sup­port the prin­ciple of increas­ing the 50MW threshold to enable a high­er pro­por­tion of future applic­a­tions for elec­tri­city gen­er­a­tion devel­op­ments to be determ­ined at the loc­al level by the rel­ev­ant plan­ning author­ity. A pro­posed response is set out below:

“The Cairngorms Nation­al Park Author­ity acknow­ledges and sup­ports the Ver­ity House prin­ciple that decisions should be ​“loc­al by default, nation­al by agree­ment”. As such, the Park Author­ity is of the opin­ion that the exist­ing threshold of 50MW should be increased to at least 100MW in order to ensure that a high­er pro­por­tion of future applic­a­tions for elec­tri­city gen­er­a­tion devel­op­ments are determ­ined at the loc­al level and through the main­stream plan­ning process.

The Park Author­ity believes this would increase demo­crat­ic account­ab­il­ity and bet­ter reflect the primacy of the devel­op­ment plan with­in the decision-mak­ing pro­cess. It would also facil­it­ate a fairer and appro­pri­ate resourcing arrange­ment for plan­ning author­it­ies through increased fee income. This is because plan­ning author­it­ies are already required to under­take a sig­ni­fic­ant amount of work as con­sul­tees to Sec­tion 36 applic­a­tions and cur­rently only receive a pro­por­tion of the applic­a­tion fee for this work.

Next steps

1. Sub­ject to Com­mit­tee approv­al, the Park Authority’s response will be sub­mit­ted before the con­sulta­tion dead­line on 27 March 2026.

Dav­id Berry 20 Feb­ru­ary 2026 davidberry@​cairngorms.​co.​uk