Energy infrastructure consent process in Scotland to be reformed

Planning law experts Gordon McCreath and Gary McGovern of Pinsent Masons welcomed the general direction of travel represented by the proposals, which are ultimately aimed at ensuring major new renewable energy or electricity transmission projects can be delivered faster – in support of broader government objectives around energy security and decarbonisation of the economy.

However, they said developers behind such projects, which can currently take years longer to clear the consenting process than in England and Wales, will want to take the opportunity the consultation process presents to highlight the need for time-limited consenting.

“Much of the proposed reform is to be welcomed, but the key change required – time-limited consenting – is kicked down the road, with provision for a forum of the Energy Consents Unit and statutory consultees to agree next steps,” McCreath said. “The good news, however, is that the core issue is explicitly recognised in the proposals: ‘The key components for a successful process are a predictable application timeline facilitated by the right skills and capacity’.”

“If energy infrastructure is to be delivered to the urgent timescales required, the Scottish government must progress these forum discussions at speed, to agree the support required for statutory consultees and set suitably challenging time limits for their input and for the Scottish government’s determination of applications,” he added.

McGovern said: “According to the proposals, the Scottish government would be empowered to set time limits for stages of the process, including determination. Depending upon detail, this could go some way to addressing the current lack of transparency and certainty on timescales, but it depends what timescales are set and whether those timescales can be or are routinely extended, which would not help speed up decisions.”

Energy policy is a matter reserved to the UK government, but certain planning powers are devolved to the Scottish government – the proposals for reform have therefore being set out jointly by the UK and Scottish governments and concern the consenting process for electricity generation projects providing for more than 50MW capacity, or over 1MW for offshore generation between zero and 12 nautical miles from shore, as well as electricity network projects.

As well as addressing time-limited consenting, the consultation paper envisages a package of other reforms.

For example, new pre-application consultation requirements are envisaged, designed to facilitate productive discussions between developers and a range of stakeholders before formal applications are filed, with the aim of improve the quality of applications that are submitted, reducing the objections raised, and enabling projects to pass through the consenting process faster.

The pre-application requirements proposed include duties on developers to publicise their plans and consult on them – with relevant planning authorities, community councils, and other bodies that the Scottish government stipulates. Two community consultation events would have to be held, and developers would be required to keep the Scottish government informed of the steps they are taking through a range of new notification and disclosure obligations, culminating in the preparation and submission of a pre-application consultation report.

The Scottish government would be responsible for scrutinising the report to determine whether the statutory pre-application requirements have been met via a new ‘acceptance stage’, which developers would need to clear through to bring forward a formal application.

“The proposed new pre-application consultation requirements go further than sister pre-application consultation requirements that apply to proposed developments falling subject to the Town and Country Planning (Scotland) Act 1997 process, and draw on elements of the development consent order process for ‘nationally significant infrastructure projects’ in England, where pre-application consultation requirements include preparation of a statement of community consultation and publication of a preliminary information report,” McGovern said.

Changes are also envisaged to the application process – it is proposed that the Scottish government be able to set a deadline after which no application amendments would be permitted, to encourage early changes. This 'deadline' would be set on a case-by-case basis.

Further changes are proposed to the public inquiries process, which is currently automatically engaged if a local planning authority objects to applications in time. Under the new regime that is envisaged, this would change in respect of relevant onshore projects. Instead, where objections are lodged, government ministers would appoint a reporter to examine the application and report on their examination. Wide discretion would be given to the reporter to determine the procedures by which to make their examination. The governments said that the purpose of the proposed changes would be to ensure “that applications will continue to be subject to an appropriate level of scrutiny, but without unnecessarily adversarial or protracted processes”.

McGovern said: “This would effectively mirror the process for planning appeals whereby the reporter dictates process, which I suspect would mean fewer inquiry sessions and more reliance on written submissions. This may speed up some cases but removes applicants’ existing ‘right to be heard’.”

New powers for the Scottish government to unilaterally revoke, suspend or modify consent are also envisaged, not only where there are errors to correct but where there has been a “change in environmental circumstances or relevant technological changes”. McGovern said that wording is very broad and leaves it open for onerous requirements to be unilaterally imposed on developers.

Other reforms consulted on include plans to reduce the window to raise legal challenges to consenting decisions for onshore projects from three months to six weeks, which is the case already for relevant decisions for offshore projects.

To address the fact that projects could be initiated before the reforms are implemented, transitional arrangements are to be provided for: applications already submitted and being processed before the new rules take effect would be subject to the new system.

The UK government said that, following the consultation process, it will bring forward the necessary legislation to affect the changes “as soon as parliamentary time allows”.