For Decision

Title: Pro­pos­als for Reform­ing the Elec­tri­city Infra­struc­ture Con­sent­ing Pro­cesses in Scot­land under the Elec­tri­city Act 1989

Pre­pared by: Colin Bry­ans (Seni­or Plan­ning Officer) / Dav­id Berry (Head of Planning)

Pur­pose

1. This paper presents the Cairngorms Nation­al Park Authority’s pro­posed response to a con­sulta­tion on pro­pos­als for reform­ing the elec­tri­city infra­struc­ture con­sent­ing pro­cesses in Scot­land under the Elec­tri­city Act 1989.

Recom­mend­a­tion

1. The Com­mit­tee is asked to:

   a) Approve the Nation­al Park Authority’s response to the con­sulta­tion, as set out in Appendix 1.

Back­ground

1. The Scot­tish Gov­ern­ment determ­ines applic­a­tions to con­struct or install elec­tri­city infra­struc­ture – both gen­er­at­ing sta­tions over 50MW (or over 1MW for off­shore gen­er­at­ing sta­tions between 0 and 12 naut­ic­al miles from shore) and net­work pro­jects – under the Elec­tri­city Act 1989.

2. While Scot­tish Min­is­ters are respons­ible for tak­ing decisions under the Elec­tri­city Act 1989, the UK Par­lia­ment has respons­ib­il­ity for the legis­lat­ive frame­work, as the powers to legis­late for ​“gen­er­a­tion, trans­mis­sion, dis­tri­bu­tion and sup­ply of elec­tri­city” were reserved in the Scot­land Act 1998.

3. In Eng­land and Wales, ​‘nation­ally sig­ni­fic­ant’ energy infra­struc­ture is con­sen­ted under the Plan­ning Act 2008, which was brought in to stream­line the con­sent­ing pro­cess and make it fairer and more effi­cient for loc­al com­munit­ies and applic­ants. The Elec­tri­city Act 1989, as used in Scot­land, has not been mod­ern­ised in the same

way, and it can take up to 4 years to con­sent large-scale onshore elec­tri­city infra­struc­ture pro­jects. This is slow in com­par­is­on to con­sents issued under the Plan­ning Act 2008 in Eng­land and Wales.

1. The UK and Scot­tish gov­ern­ments agree that mod­ern­ising the Elec­tri­city Act 1989 is the most prag­mat­ic route to speed­ing up infra­struc­ture deploy­ment whilst ensur­ing applic­a­tions of an accept­able stand­ard, break­ing down a major bar­ri­er to an effi­cient con­sent­ing pro­cess and provid­ing great­er cer­tainty of pro­cess and times­cales for all parties. The UK and Scot­tish Gov­ern­ments also agree that require­ments for applic­ants to seek views from the pub­lic, com­munit­ies and con­sul­tees at pre- applic­a­tion stage should be intro­duced to build a fairer con­sent­ing sys­tem and to help applic­ants devel­op bet­ter qual­ity applic­a­tions for consent.

2. A series of pro­posed reforms have there­fore been iden­ti­fied to mod­ern­ise the Elec­tri­city Act 1989 and remove inef­fi­cien­cies whilst giv­ing com­munit­ies and stat­utory con­sul­tees mean­ing­ful oppor­tun­it­ies to influ­ence applic­a­tions for con­sents. The pro­pos­als cov­er the entire jour­ney of an applic­a­tion, begin­ning with pre- applic­a­tion require­ments, and con­tinu­ing through to the pro­cess for chal­len­ging con­sent­ing decisions made by Scot­tish Min­is­ters. The pro­posed reforms do not make applic­a­tions for elec­tri­city infra­struc­ture con­sent more or less likely to be gran­ted. Decisions on all such applic­a­tions will con­tin­ue to be taken by Scot­tish Min­is­ters on a case-by-case basis with regard to rel­ev­ant policy frame­works and weigh­ing the impacts (includ­ing cumu­lat­ive impacts) and bene­fits of each development.

Sum­mary of reforms and pro­posed con­sulta­tion response

1. The fol­low­ing sec­tions of this report provide an over­view of the pro­posed reforms to the Elec­tri­city Act 1998. They include pro­pos­als relat­ing to: pre-applic­a­tion require­ments; applic­a­tion pro­ced­ures; pub­lic inquir­ies; vari­ations; fees for neces­sary wayleaves; stat­utory appeals and judi­cial pro­ceed­ings; and trans­ition­al arrange­ments. The con­sulta­tion asks a series of ques­tions under each area of the pro­posed reforms. The con­sulta­tion ques­tions, and the Nation­al Park Authority’s pro­posed response to them, is set out in Appendix 1. Mem­bers are asked to note the pro­posed reforms and to agree the Park Authority’s pro­posed response to the con­sulta­tion questions.

Pre-applic­a­tion requirements

1. In con­trast to all oth­er legis­lat­ive plan­ning regimes in Great Bri­tain, the Elec­tri­city Act 1989 stip­u­lates no pre-applic­a­tion require­ments, for example the require­ment to con­sult in advance of an applic­a­tion being made. This allows applic­ants to sub­mit applic­a­tions for elec­tri­city infra­struc­ture con­sent without con­sult­ing com­munit­ies or stat­utory con­sul­tees, although some may choose to do so. Reform pro­pos­als include the intro­duc­tion of require­ments for pre-applic­a­tion con­sulta­tion, noti­fic­a­tion and pub­lic­a­tion of planned applic­a­tions. Also pro­posed is the abil­ity for Scot­tish Min­is­ters to recov­er the costs of any pre-applic­a­tion activ­it­ies, and the intro­duc­tion of an ​‘accept­ance stage’ when Scot­tish Min­is­ters can decline to accept applic­a­tions which have not ful­filled pre-applic­a­tion requirements.

Applic­a­tion procedures

1. Under the Elec­tri­city Act 1989, stat­utory con­sul­tees includ­ing rel­ev­ant plan­ning author­it­ies, Scot­tish Nation­al Her­it­age (now known as NatureScot), the Scot­tish Envir­on­ment Pro­tec­tion Agency and His­tor­ic Envir­on­ment Scot­land provide import­ant input to enable effect­ive scru­tiny of applic­a­tions. How­ever, without timely deliv­ery of each input, sup­por­ted by the right skills and capa­city, the applic­a­tion timeline can become lengthy. The pro­posed reforms aim to provide col­lab­or­at­ive approaches to deliv­er a pre­dict­able applic­a­tion timeline facil­it­ated by the right skills and capa­city to provide great­er cer­tainty for all parties. Fur­ther meas­ures to sup­port the clar­ity and timeli­ness of the pro­cess include enabling updates of the inform­a­tion require­ments for applic­a­tions, and con­straints on the tim­ing of amend­ments for onshore applications.

Pub­lic inquiries

1. Under exist­ing arrange­ments, where a rel­ev­ant plan­ning author­ity objects to an applic­a­tion with­in stat­utory times­cales, and the objec­tion is not with­drawn or addressed through modi­fic­a­tion or con­di­tions, the Scot­tish Min­is­ters must hold a pub­lic inquiry. This is a form­al pro­cess, usu­ally involving an exam­in­a­tion by way of an oral hear­ing and / or inquiry ses­sions, which takes an aver­age of 18 months. The reform pack­age, par­tic­u­larly pre-applic­a­tion con­sulta­tion, aims to reduce the num­ber of plan­ning author­ity objec­tions by bring­ing for­ward more com­plete and bet­ter for­mu­lated applic­a­tions, shaped at an earli­er stage by input from rel­ev­ant plan­ning author­it­ies, loc­al com­munit­ies and oth­er stat­utory con­sul­tees. Spe­cif­ic reform pro­pos­als focus on retain­ing the oppor­tun­ity for rel­ev­ant plan­ning author­it­ies to object, and hand­ling objec­tions through a tailored, Report­er-led exam­in­a­tion process.

This could include a pub­lic inquiry in some cases, but may involve altern­at­ive approaches such as site inspec­tion, fur­ther writ­ten sub­mis­sions, hear­ing ses­sions, pub­lic inquiry ses­sions, or a com­bin­a­tion of these.

Vari­ations

1. There is no pre­scribed pro­cess to vary con­sents for net­work pro­jects gran­ted under sec­tion 37 of the Elec­tri­city Act 1989. This causes uncer­tainty for gen­er­at­ors await­ing con­nec­tions, is a pro­ced­ur­al risk for developers and Min­is­ters, and has the poten­tial to pre­vent sig­ni­fic­ant net­work upgrades going ahead unless a new, full applic­a­tion is sub­mit­ted. Reform pro­pos­als seek to imple­ment a pre­scribed pro­cess for vary­ing con­sents to net­work pro­jects. There is a fur­ther pro­pos­al to give the Scot­tish Gov­ern­ment powers to revoke, sus­pend or vary con­sents under spe­cif­ic circumstances.

Fees for neces­sary wayleaves

1. In con­trast to the UK Gov­ern­ment, the Scot­tish Gov­ern­ment can­not charge fees for pro­cessing applic­a­tions for neces­sary wayleaves (stat­utory rights that allow elec­tri­city licence hold­ers to install and access their elec­tri­city lines and asso­ci­ated infra­struc­ture on land owned by oth­ers). Changes are required to enable the Scot­tish Gov­ern­ment to pro­cess an expec­ted sig­ni­fic­antly increased volume of applic­a­tions for neces­sary wayleaves in com­ing years. Reform pro­pos­als seek to allow the Scot­tish Gov­ern­ment to charge the net­work oper­at­or fees at the point of applic­a­tion submission.

Stat­utory appeals and judi­cial proceedings

1. In Scot­land, there is incon­sist­ency as to wheth­er con­sents gran­ted to applic­a­tions for elec­tri­city infra­struc­ture can be chal­lenged by a judi­cial review or a stat­utory right of appeal, depend­ing on wheth­er the con­sent is gran­ted for an onshore or off­shore pro­ject. The time lim­it for the chal­lenge also var­ies and may either be 3 months or 6 weeks. Reform pro­pos­als look to align the times­cales to 6 weeks and use a stat­utory right of appeal pro­cess for all onshore and off­shore con­sent­ing in Scotland.

Trans­ition­al arrangements

1. It is pro­posed that all applic­a­tions sub­mit­ted to the Scot­tish Gov­ern­ment after the new pro­vi­sions come into force and applic­a­tions already being pro­cessed by the Scot­tish Gov­ern­ment will be con­sen­ted to under the new sys­tem. This would apply

from the stage in the con­sent­ing pro­cess that the applic­a­tion has already reached and would not be ret­ro­spect­ive. For example, applic­a­tions which have been sub­mit­ted before the new sys­tem comes into effect would not be required to ful­fil pre-applic­a­tion require­ments but would be sub­ject to lim­its on request­ing amendments.

Colin Bry­ans colinbryans@​cairngorms.​co.​uk