Wind farm public inquiry information: EIR release

Information requested

I am writing in reference to the response provided to my recent Environmental Information (Scotland) Regulations 2004 (EIRs) request (Case reference: 202500451517) concerning data on Battery Energy Storage Systems (BESS) developments and renewable energy projects in the Scottish Borders and the Ettrick, Roxburgh and Berwickshire Constituency.

Upon reviewing the information provided, specifically Annex A, I noticed that the Muirhall Wind Farm (or Teviot Wind Farm) under ECU reference ECU00003249 was not included in the list of projects within the remit of the Energy Consents Unit (ECU). Given the size of the project, i.e Generating station of >200

Furthermore, in relation to the Muirhall Wind Farm application, I understand that the Council Planning Committee at Scottish Borders Council voted to object to the application, and a public inquiry is now scheduled to take place. I would be grateful if you could provide clarification on the following points:

What is the typical process involved in a public inquiry regarding a wind farm application?

How long do public inquiries usually last?

What percentage of the time do Scottish Ministers decide against the recommendations made within a public inquiry?

What are the typical costs associated with a public inquiry?

Does a public inquiry hold any legal standing once it has concluded?

Response

As the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

Firstly, please accept our apologies for the information that was missing in response to your previous request (EIR 202500451517 refers). The information that was pulled from our records was incomplete at the time of your request. I thank you for raising this with us and we are taking the necessary steps to ensure that the information held on our records is complete and up to date.

For the other points that you have raised, I will answer each in turn:

1. By way of background, any proposal to construct or operate a power generation scheme with a capacity under the threshold of 50 megawatts fall to be determined under the Town and Country Planning (Scotland) Act 1997 and The Town and Country Planning (Appeals) (Scotland) Regulations 2013 . For these proposals determination is to be made in accordance with the development plan unless material considerations indicate otherwise. These decisions are delegated to an independent Reporter to make a decision on Ministers’ behalf. In these cases it is for the reporter to determine the process whether by site visit, further written submissions, hearing or more rarely by inquiry.

Applications to construct or extend an electricity generating station (including an onshore wind farm) with a capacity of more than 50 megawatts are made to Scottish Ministers under section 36 of the Electricity Act 1989. Scottish Ministers also deal with applications to construct overhead electric power lines (section 37). Cases are only referred to the Planning and Environmental Appeals division for appointment of a reporter in certain limited circumstances. This usually applies where there is an objection from the planning authority or more rarely from a statutory consultee such as NatureScot. Schedule 8 applies to consents under sections 36 or 37 of the Electricity Act.

There are no prescribed rules for the conduct of inquiries held under schedule 8 of the Electricity Act 1989. The procedure to be followed at inquiry is a matter for the discretion of the reporter, the objective being to conduct proceedings in a fair, transparent and efficient manner. To this end, those appointed to hold the inquiry and to report to Ministers (‘reporters’) will seek views from the parties on whether any of the issues raised in objections, representations or comments from consultees can be dealt with on the basis of written submissions or a hearing, restricting the topics to be addressed at an inquiry session to those that require cross-examination or otherwise require to be dealt with by that form of procedure. This form of hybrid procedure will be adopted if the reporter considers that this would be the most efficient way of conducting the inquiry and where parties agree to this approach. The code of practice for handling inquiries under Section 62 and Schedule 8 to the Electricity Act 1989 sets out the procedures to follow in these cases.

I also attach a link to DPEA guidance note - Planning appeals and other cases: guidance on taking part - gov.scot - Annex 3 of this note gives further information on matters considered in applications referred to DPEA for wind energy proposals under section 36 of the Electricity Act, which may be helpful.

2. DPEA have an overall target of 50 weeks from registration which is applied to cases which proceed through inquiry process. While reporters will seek to achieve this target, if there are delays arising from matters that are not within a reporter’s control, such as the submission of additional information under the Environmental Impact Assessment (EIA) regulations, the target will be postponed by the time it takes to deal with that matter. I attach a link to Reporter Guidance note 23 which also provides more detailed information including an indicative sample timeline for an inquiry - Microsoft Word - Reporter Guidance Note 23 - compliance with procedural requirements

3. I can confirm that, for the timescale requested, Scottish Ministers have decided against the reporters’ recommendations in 10 out of 44 cases = 22.73% For ease I attach a table detailing those 10 cases. Please see Annex A.

*These cases refer to renewable energy cases called in by Scottish Ministers that fell to be determined under the Town and country Planning (Scotland) Act 1997 but which did not proceed via inquiry method.

4. The typical costs associated with a public inquiry can include Reporter time, Venues, press adverts, travel and accommodation and case officer administration costs** Please note Case officer costs in respect of inquiries are not collected by the DPEA.

5. Yes, a public local inquiry, in respect of S36/S37 applications is a formal procedure under Section 62 and Schedule 8 to the Electricity Act 1989. Likewise inquiries falling to be determined under the Town and Country Planning (Scotland) Act 1997 and The Town and Country Planning (Appeals) (Scotland) Regulations 2013 are also formal procedures .

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

EIR 202500456071 - Information released - Annex A

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