- 23 Apr 2018
FOI reference: FOI/18/00976
Date received: 23 March 2018
Date responded: 18 April 2018
1. Details, and 'true copies' of the exact criteria used by Scottish Ministers and their representatives (Reporters) when making a determination on planning applications for wind farms and wind turbines. For the avoidance of doubt, this includes the exact legislation and guidance used in making such a determination.
2. 'True copies of confirmation that the determination process used by Scottish Ministers, and their representatives (Reporters), fully comply with the Human Rights Act 1998, and the European Convention on Human Rights, in their entirety. For the avoidance of doubt, 'true copies' means 'exact copies' of the documentation used by Scottish Ministers, and their representatives (Reporters), to make such a determination.
3. Confirmation that the relevant Scottish Minister has endorsed the newly updated version of ETSU 1997 used by Scottish Ministers, and their representatives (Reporters) when making a determination on wind farms.
1.Each appeal and application is considered solely on the merits and facts as they relate to the proposal. The reporter is required to consider the case before him/her in accordance with the development plan for that area unless material considerations indicate otherwise (Section 25 of the Town and Country Planning (Scotland) Act 1997) Those material considerations cover a wide range, including Scottish Planning Policy, National Planning Framework, a proposed strategic or local development plan as well as community plans, the environmental impact of the proposal as well as legitimate public concern or support expressed on relevant matters.
Regarding the legislation and guidance used, the information you have requested is available from the internet at the following web addresses:
Section 25 of the Town and Country Planning (Scotland) Act 1997 - https://www.legislation.gov.uk/ukpga/1997/8/section/25
Scottish Planning Policy - https://beta.gov.scot/publications/scottish-planning-policy/pages/2/
National Planning Framework - https://beta.gov.scot/publications/national-planning-framework-3/
The Electricity Act 1989 - http://www.legislation.gov.uk/ukpga/1989/29/contents
The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 - http://www.legislation.gov.uk/ssi/2017/101/contents/made
The Electricity (Applications for Consent) Regulations 1990 - http://www.legislation.gov.uk/uksi/1990/455/contents/made
The Electricity (Applications for Consent) Amendment (Scotland) Regulations 2013 - http://www.legislation.gov.uk/ssi/2013/58/contents/made
The Electricity Generating Stations (Applications for Variation of Consent) (Scotland) Regulations 2013 - http://www.legislation.gov.uk/ssi/2013/304/contents/made
Section 57 of the Town and Country Planning (Scotland) Act 1997 - http://www.legislation.gov.uk/ukpga/1997/8/section/57
Onshore Wind Policy Statement - https://beta.gov.scot/publications/onshore-wind-policy-statement-9781788515283/pages/2/
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
If you have a query about a specific appeal or application, please let me know and I can provide you with the relevant development, strategic and local plan policies that were/are being considered for that particular case.
2. I have found that no such confirmation document exists. Consideration would always be given to the balance of benefits and impacts when making a decision. Section 29 of the Scotland Act states that Acts of the Scottish Parliament are not law where they are incompatible with the European Convention of Human Rights (ECHR), and Section 57 of the same Act states that a member of the Scottish Government (SG) has no power to act in a manner incompatible with ECHR. In addition, Section 6 of the Human Rights Act (1998) states that it is unlawful for a public authority (including SG) to act in a way which is incompatible with a Convention right. These are the existing constitutional protections.
The Scotland Act - https://www.legislation.gov.uk/ukpga/1998/46/contents
3. Following a search, I have established that the document ETSU-R-97 has not been recently updated and the most recent good practice guidance issued in relation to this document was dated May 2013. Therefore no endorsement by the relevant Scottish Minister exists. This means that we are refusing your request under the exception at regulation 10(4)(a) of the EIRs.
As the exception is conditional we are required to apply the 'public interest test'. This means we have, in all the circumstances of this case, considered if the public interest in disclosing information outweighs the public interest in applying the exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in Ministerial endorsement of updates to guidance, clearly we cannot provide information which we do not hold.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House