Considerations of what will be involved with processing applications for >50MW windfarms in the Western Isles.

5 October 2004.

ELECTRICITY ACT 1989

Applications for Consent

Introduction

Developers of power stations (which include renewable energy developments) with an installed capacity in excess of 50 MW are required to obtain consent from the Scottish Ministers under Section 36 of the Electricity Act 1989. Such consents usually also deem planning permission.

This means that application for consent must be made to the Scottish Executive and not to the Planning Authority.

Environmental Statement

The developer is required to undertake an assessment of the potential environmental impacts of the proposal. These have to be set out in an Environmental Statement. The Environmental Statement should therefore contain a detailed description of the project, along with a detailed examination of the potential environmental impacts and the measures to avoid, mitigate or compensate for these impacts. It should include all stages of the project: construction, operation and if appropriate, de-commissioning.

The developer is also required to place notices in local and national press advertising the fact that application for consent has been made. These notices must be placed in a national newspaper for one week and in at least one local newspaper for two consecutive weeks and should provide:

1. A brief description of the project and its location;
2. Advice on where the Environmental Statement can be viewed;
3. Advice on where a Non-technical Summary of the Environmental Statement can be obtained and where a copy of the Environmental Statement itself can be purchased (at reasonable cost); and
4. Advice on how, by when and to whom representations should be made.

Consultation Process

The Scottish Executive is required to consult a number of bodies for their views on whether the proposal is acceptable; what changes might be needed and so on.

These organisations include:

1. The relevant Planning Authority (in the case of the Western Isles this is the Comhairle).
2. Scottish Natural Heritage.
3. SEPA.
4. Historic Scotland.

In addition, a wide range of Government Departments (such as DTI, and the Ministry of Defence) statutory bodies (such as Scottish Water, National Air Traffic Services, Highlands and Islands Airports, Salmon Fishery Boards, telecommunications organisations, and so on); as well as others, such as RSPB, are consulted.

Responses to Consultation

The relevant planning authority has 4 months in which to respond.

All other organisations are required to respond within 28 days.

Public Consultation

Members of the public are invited to make representations to the Scottish Executive. These can be copied to the Comhairle, or separate representations can be made to the Comhairle.

These must be in writing. That means a letter or an e-mail containing a verifiable address. Mobile phone text messages are not acceptable.

These should be made within a 28-day period starting from the second notice in the local press. Representations made beyond then will not be disregarded provided they are made before the end of the period for the relevant planning authority to respond (that is 4 months).

Representations made beyond the 4-month period will not be considered. However, should the matter go to Public Inquiry it will be for the Reporter(s) to decide whether late representations will be heard.

The Role of the Comhairle

The Comhairle has a key role in the process since, if it objects to the proposal and does not withdraw that objection, the matter must be referred to a public inquiry (PLI).

If the Comhairle does not object, or its objection can be met by changes to the proposal, or by conditions that overcome its objection, then a PLI is not required.

How Will a Decision be Made?

Ministers are required to take into account all the relevant considerations in reaching a decision.

In general this means that Ministers must take account of the impacts on people; the environmental impacts; and impacts on the built and cultural heritage. Noise, construction traffic movements, television reception, aviation and visual impacts would all be important considerations under this heading.

Ministers must pay particular attention to international and national designations, ranging from Natura sites, SSSIs, National Scenic Areas and their obligations in respect of protected species.

Overall, Ministers must have regard to planning considerations; the wider policy objectives, whether in respect of energy, environmental or other policies; and the representations received.

Public Inquiries

Ministers are required to refer the matter to a PLI if:

• The relevant planning authority makes an objection that is not subsequently withdrawn
• If there are unresolved matters, which, in the Minister’s opinion, can only be resolved by means of a public inquiry
• If there has not been an appropriate means for people to make their views known.

THIS MEANS THAT A DECISION ON A PUBLIC INQUIRY, EXCEPT WHERE THE PLANNING AUTHORITY HAS OBJECTED, IS FOR THE MINISTER TO MAKE.

Timing

It is unusual for a decision to be made in much less than 12 months.

It is much more usual for it to take longer. How much longer depends on the complexity of the issues and in some cases the need for further information to be provided by the applicant.