Onshore electricity generation - Electricity Act threshold: consultation

Considerations

Respondents to the Investing in Planning consultation raised a number of potential considerations ahead of any changes to the threshold. These were also explored through our subsequent informal engagement and broadly include the following:

Local Decision-Making

The Verity House Agreement (30 June 2023) sets out that decision-making should be ‘local by default, national by agreement’, recognising that public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen.

The majority of public sector, third sector and community respondents to the ‘Investing in Planning’ consultation were in favour of the threshold being increased. A range of reasons were given for this view including greater local autonomy and community involvement in decision making, primacy of the development plan^[1] under the Planning Act, and additional fees for local authorities (see ‘resourcing and fees’ below).

Time to determine applications

Historically, timescales for S36 applications and planning applications have varied and there can be many factors influencing the speed of decision-making.

There is a likelihood that average timescales for decision making under S36 of the Electricity Act will decrease in the coming years. The On-Shore Wind Sector Deal (September 2023) commits Scottish Ministers to determining S36 applications for new sites, and for the re-powering of existing operational sites, within 12 months where there is no public inquiry, or 24 months if there is a public inquiry, from 2025 onwards.

Improvements to the S36 application process set out in the UK Government’s Planning and Infrastructure Bill (detailed below) would also be expected to reduce decision-making timescales.

Similarly, work is ongoing to improve planning authority timescales, including through the National Planning Hub and the National Planning Improvement Champion’s programme of work.

UK Government: Planning and Infrastructure Bill

The Scottish Government has been engaging with the UK Government on reforms to the Electricity Act 1989. These reforms are included in the UK Government’s Planning and Infrastructure Bill and seek to better align the consenting process under the Electricity Act 1989 with Scotland’s planning processes set out under the Town and Country Planning (Scotland) Act 1997, as amended.

Specifically, the reforms seek to introduce a statutory requirement for pre-application engagement with communities directly affected by the proposed development. Developers would have to demonstrate that they have considered comments arising from this engagement. Scottish Ministers would also be able to refuse applications if they do not meet the required pre-application development engagement.

There would also be new powers to set time limits for responses from statutory consultees to better facilitate the decision-making process and reduce inefficiencies.

The bill also seeks to make changes to the process that applies when objections are made by planning authorities. At present, if a planning authority raises an objection within statutory timeframes, a public local enquiry (PLI) must be held.

Proposed reforms would retain a PLI as an option among many to be considered by an independent reporter appointed by Scottish Ministers, to make an examination into the application, giving them powers to determine what form that examination takes.

Consistency in Decision-Making

Analysis from the Investing in Planning consultation and our subsequent informal engagement indicates that some developers value the strategic oversight and consistency which can be afforded where decision-making is centralised, and decisions made by the Scottish Ministers. Irrespective of the current proposed reforms to the Electricity Act 1989, industry respondents note that procedures under the Electricity Act are well-established and understood.

In contrast, respondents from public sector, third sector and community groups were more likely to value the primacy of the development plan under the Planning Act, which requires that planning applications are determined in accordance with the development plan unless material considerations indicate otherwise.

In Scotland, the development plan comprises the National Planning Framework and the relevant Local Development Plan.

Resourcing and Fees

Under current arrangements, planning authorities are assigned a voluntary contribution, amounting to 50% of the fee paid to Scottish Ministers for applications made under the Electricity Act 1989, so that they can undertake work to consider the application as a statutory consultee.

Some respondents to the Investing in Planning consultation queried whether there would be sufficient local authority resourcing and capacity within planning authorities to determine an increased number of applications. Planning authorities however highlight that limited additional resource is required to determine such applications when compared to the significant work they already undertake as statutory consultees under the Electricity Act, and that determining more such applications might bring in greater fee income. We would expect such income to be reinvested in the planning service to optimise the handling of applications.

Scottish Ministers have significantly increased the Scottish Government’s Energy Consents Unit (ECU) resourcing over the last year, in response to the growing number and complexity of applications, demonstrating their commitment to meeting Onshore Wind Sector Deal timescales of 12 months consenting.

Equivalent thresholds elsewhere in the UK

In England, large scale major development projects are determined centrally by the UK Government Secretary of State through the ‘Nationally Significant Infrastructure Projects’ (NSIP) consenting regime. Through the Clean Power 2030 Action Plan, the UK Government will reintroduce on-shore wind into the NSIP consenting regime with a threshold of 100MW and increase the threshold for solar to 100MW from 31 December 2025.

For BESS applications, The Electricity Storage Facilities (Exemption) (England and Wales) Order 2020 says that all applications for BESS should be decided by planning authorities at a local level, regardless of electricity generation capacity.