Hydrogen: planning and consenting guidance

3. Planning Permission

3.1. Introduction and Legislative Context

Applications for planning permission are to be made to the relevant planning authority^[7] for the development of an on-shore hydrogen production facility under the terms of The Town and Country Planning (Scotland) Act 1997 (Planning Act), as amended and associated planning legislation.

3.2. Development Planning

The planning system in Scotland is plan-led. The statutory ‘development plan’ comprises the National Planning Framework (NPF) which covers all of the country, and the local development plan (LDP) for each planning authority area. Development plans set out how places will change into the future, including where development should and shouldn’t happen. Plans bring together many different sectors and interests to achieve the desired change for places and communities. It is the planning authority’s responsibility to prepare the local development plan (LDP), (which has to be prepared at intervals of no more than 10 years), but should do so in collaboration with a wide range of stakeholders. As a matter of law, planning applications are required to be made in accordance with the development plan, unless there are material considerations that indicate otherwise. In Scotland the statutory development plan for any given area of Scotland consists of the National Planning Framework ^[8]and the relevant local development plan(s).

Developers are therefore encouraged to engage with planning authorities on the siting and delivery of hydrogen projects as Local Development Plans (LDPs) are prepared and delivered.

Local development planning has three key stages; Evidence Gathering, Plan Preparation and Delivery of the plan. There are various opportunities to engage in the preparation of an LDP.

Evidence Gathering

Planning authorities are required to prepare an Evidence Report that contains sufficient information to enable them to prepare an LDP, before they prepare their plan. The aim of the Evidence Report is to front-load the work and use evidence to clearly inform what to plan for before the Proposed Plan looks at where development should take place. LDP Guidance advises that existing or emerging strategies for the delivery of renewables are relevant considerations during the preparation of the Evidence Report, alongside strategies for the delivery of emerging low-carbon and zero emissions technologies including hydrogen and carbon capture utilisation and storage (CCUS). Planning authorities may also wish to consider creating, or using existing forums or groups to engage with stakeholders around data collection and evidence. This should include landowners and developers, and their representative bodies where appropriate. A Scottish Government blog gives advice on how developers can support the Evidence Report stage.

Plan Preparation

Planning authorities may wish to undertake a general call for ideas/sites which can offer an opportunity for developers to put forward ideas or sites they would like to be considered by the planning authority for inclusion in the LDP. However, this is an optional, non-statutory stage, and it is for authorities to determine the appropriate timing, should they wish to run such an exercise. More details about each Council’s approach to engagement will be set out in its Development Plan Scheme (DPS), which will include a Participation Statement as well as the authority’s proposed timetabling for preparing the plan. The DPS will be available on the Council’s website, and has to be updated at least annually.

In the proposed plan, spatial strategies can identify opportunities to allocate land for the production, storage and transportation of hydrogen linked to on-shore and off-shore renewables. LDPs may seek to determine whether sites within existing industrial land allocations are suitable for hydrogen production, or if there is any additional suitable brownfield land. Opportunities to co-locate facilities for the production, storage, conversion and distribution of hydrogen and hydrogen products with eventual end-users may also be explored.

The planning authority will formally consult on their Proposed Plan (12 week minimum consultation period). In responding to the consultation, stakeholders should be concise in their representations, clearly explaining the issues they wish to be considered by the planning authority and, if unresolved, by the reporter at the Examination. Where developers are promoting alternatives, e.g. different or alternative sites, they should provide information on environmental impact and community opinion as part of their representation. It is up to those making representations to make their case, which could include, where relevant, details of community support. There is no automatic opportunity for parties to expand on their representation later in the process, so it is important that they provide their full case and evidence at this stage. This will then form part of the material available to the reporter at any subsequent Examination.

More details on the development planning system is available in the Scottish Government’s Local development planning guidance.

3.3. Applying for Planning Permission

Hierarchy of Development

Section 26A of the Town and Country Planning (Scotland) Act 1997, as amended, sets out three categories of development. These categories are:

National Development – Designated in the National Planning Framework, these are significant developments of national importance that will help deliver Scotland’s spatial strategy. National development designation does not grant planning permission for the development and all relevant consents are required. The designation means rather that the principle of the development does not need to be agreed in later consenting processes. The following national developments identified in NPF4 explicitly incorporate a hydrogen component.

• 1: Energy Innovation Development on the Islands
• 14: Aberdeen Harbour
• 15: Industrial Green Transition Zones
• 16: Hunterston Strategic Asset
• 17: Chapelcross Power Station Redevelopment

Hydrogen infrastructure may also be indirectly integrated into other national developments. If there is any doubt as to whether a development should be considered as a national development, legal advice should be sought.

Major Development – The Schedule of Major Developments included within The Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 sets out nine 'classes' of major developments, each with a description and relevant threshold or criteria. These include:

• Construction of a building, structure for any industrial process or for use for storage where the gross floor space exceeds 10,000 square metres or the area of the site is or exceeds 2 hectares.
• Construction of an electricity generating station exceeding 20MW in capacity.
• Pipelines with a length that exceeds 8km.
• All Environmental Impact Assessment (EIA) Schedule 1 type developments. Further details on EIA procedures are set out in Section 4.

Local Development – All other development which does not fall within either national or major categories is a local application.

3.4. Energy Generation

Any proposed on-shore wind, solar, or other energy generation station or storage facility which is linked to a hydrogen project would also require planning permission.

In cases where the electricity generating station has a capacity of 50MW or less, a single application for planning permission can be prepared to cover the hydrogen production facility and the related renewable electricity generating station or storage facility.

Any proposal to construct, extend, or operate an onshore electricity generating station with a capacity of over 50 MW requires consent from Scottish Ministers under section 36 of The Electricity Act 1989. A separate application for ‘section 36 consent’ would therefore need to be submitted to the Scottish Government’s Energy Consents Unit (ECU) for this element of the proposal. Detailed guidance on the section 36 Consent process can be found Energy Consents Unit Good Practice Guidance.

3.5. Application Process – Key Stages

The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013, as amended sets out the procedures governing applications for planning permission.

3.5.1 Pre-Application Stage

Pre-Application Engagement Between Prospective Applicants, Planning Authorities and Statutory Consultees

Early and open pre-application discussions can help to identify potential key planning issues and considerations at an early stage and inform proposals. They can help to clarify the information required to support a subsequent application and in doing so, pre-application discussions should improve the quality of planning applications and the efficiency of the determination process.

Depending on the location and nature of the site and proposed development, other bodies with whom it may be appropriate to consult include:

• Scottish Environment Protection Agency (SEPA)^[9]
• Health and Safety Executive (HSE)
• NatureScot^[10]
• Historic Environment Scotland^[11]
• Scottish Water
• Transport Scotland
• Marine Scotland
• Crown Estate Scotland^[12]

Statutory Pre-Application Consultation Between Prospective Applicants and Communities

Developments which are categorised as ‘major’ and ‘national developments’ require formal Pre-Application Consultation (PAC) with the community prior to the submission of any planning application. Details can be found in the Scottish Planning Circular 3/2022: Development Management Procedures

Meaningful PAC can address misunderstandings; alleviate safety concerns; highlight any issues which are important to the local community; smooth the application process itself and ultimately improve development outcomes.

3.5.2 Making a Planning Application

Prospective applicants can either apply for planning permission or planning permission in principle (PPiP). The latter can be used to establish the acceptability of a proposal in principle, without having to develop the detailed proposals. Applicants should however discuss with planning authorities any additional information that is likely to be required.

Planning Permission

Guidance on the information on the content of a planning application is set out below. Whilst it is ultimately for the applicant to decide what additional supporting information they wish to provide with their application, it is open to planning authorities to require additional information where this is necessary to determine the application. In practice developers are therefore encouraged to discuss with an authority whether additional information may be needed to support efficient processing of the application.

Planning Permission in Principle

An application for PPiP can be used to establish the acceptability of a proposal in principle without having to develop detailed proposals. Applicants should discuss the level of information that is likely to be required with the planning authority. The PPiP consent will be subject to conditions that the relevant development cannot be commenced until certain matters have been approved.

Content of the Planning Application

The required content of an application for planning permission will depend on the scale, nature and location of the proposal but should include a written description of the development, plans and drawings and supporting technical and environmental information. Further details of the statutory requirements are set out in Scottish Planning Circular 3/2022: Development Management Procedures.

For PPiP applications, there is no statutory requirement for plans and drawings (other than a location plan). A description of the location of the access points to the development from a road must be provided if access is to be taken directly from a road.

Applicants are encouraged to think beyond the statutory minimum requirements for an application and provide, through pre-application discussion with the planning authority, additional information needed to support efficient processing of the application. Any requirements for additional information, whether they are identified at the pre-application stage or once an application has been made, should be necessary, proportionate and clearly scoped.

Application Submission

Applications can be submitted online via the ePlanning Scotland website.

All applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. In Scotland the statutory development plan for an any given area consists of National Planning Framework 4 (NPF4) and the relevant local development plan.

3.5.3 Processing Applications

Timescales

Unless the applicant and planning authority agree in writing to a different date, the planning authority are expected to determine applications for planning permission for ‘national’ and ‘major’ developments within 4 months of the validation date and within 2 months of the validation date for ‘local’ developments.

Where an application is subject to EIA, the planning authority should determine the application within 4 months.

Use of Conditions

Conditions attached to a planning consent may be appropriate where there is a need to ensure control over aspects of the development.

Developers should look to discuss conditions with the planning authority early in the process to assist in making sure that the requirements are reasonable in the light of the development proposed. Discussion can also reduce the need for conditions and ensure those imposed meet the tests set out in Circular 4/1998 and are necessary, relevant, enforceable, precise and reasonable in all other respects.