Accessing Scotland's geothermal resource: regulatory guidance

Planning

The planning system is used to make decisions about future development, and the use of land, in Scotland’s towns, cities and countryside. The planning system regulates the use and development of land and buildings by granting or refusing planning permission. Decisions on planning applications are based primarily on the development plan for the area, which consists of the National Planning Framework (NPF) and the local development plan (LDP). The LDP is prepared by the planning authority for the area. There are statutory requirements on planning authorities on public engagement when it comes to the preparation of LDPs.

The fourth NPF supports development proposals for energy infrastructure where they will repurpose former fossil fuel infrastructure for the production or handling of low carbon energy.

In the absence of any permitted development rights, planning permission from the relevant planning authority is required for any new development proposal. ‘Permitted development rights’ is the name given to a planning permission granted in legislation. Where development is in line with the terms of these rights, an application for such permission is not needed. ‘Development' includes any building, engineering, mining or other operations in, on, over or under land. It also includes material changes to the use of buildings and land. Whether a change of use is ‘material’ (that is, significant in planning terms), depends on the circumstances of the individual case.

For the purposes of planning applications, developments are categorised as local, major or national. The different types involve different statutory processing requirements, to reflect their size, complexity and the issues likely to arise:

• local developments include changes to individual houses and smaller developments for new housing and retail
• major developments include developments of 50 or more homes, certain waste, water, transport and energy-related developments, and larger retail developments
• national developments are mainly large public works

National developments are identified in the NPF and major and local developments are specified by the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009.

All planning applications must contain a description of the proposed development, a site address or location and details of who is applying for the planning permission. The planning authority will also require:

• drawings and plans
• a certificate showing the site owners and any agricultural tenants, and stating whether they have been notified that an application has been made
• the planning application fee

The size of the planning application fee will depend on the type, and usually the size, of development. A further charge may apply where the application requires the publication of a notice in a newspaper.

Depending on the scale and/or area of the development, and the nature of the application, a 'design and access statement' or a ‘design statement’ may also be required. This statement sets out how the design of the proposal has been considered.

If the proposal is for a major or national development, a pre-application consultation (PAC) with the community will also be required. These requirements are placed on the party intending to make a planning application – the ‘prospective applicant’. PAC includes sending details of the proposal to the planning authority and to every community council any part of whose area is within, or adjoins, the land on which the proposed development is situated. This may include community councils in a neighbouring planning authority area.

PAC also involves consulting the wider community using at least two locally advertised public events. A planning authority can require additional consultation beyond this statutory minimum. The objective of PAC is for communities to be better informed about major and national development proposals, and to have an opportunity to contribute their views before a formal planning application is submitted to the planning authority. As indicated PAC is about communities making their views known to the prospective applicant. PAC does not, therefore, take away the need for, and right of, individuals and communities to express formal views to the planning authority during the planning application process itself.

A screening process is available allowing prospective applicants to seek the planning authority’s view on whether their proposal is a national development or a major development and therefore requires PAC. Exemptions from PAC can apply where an earlier application for essentially the same proposal was made, and had gone through the PAC process.

A planning authority has up to four months to determine applications for planning permission for national developments and major developments. It has up to two months to determine planning permission for local development proposals (this is extended to four months if an Environmental Impact Assessment (EIA) is required (more information in next section)). An applicant can challenge a planning authority’s decision to refuse permission or a condition attached to the grant of planning permission. The applicant can require either a local review or appeal of the decision, as appropriate. A local review or appeal can also be sought if the planning authority does not issue a decision within the relevant statutory period, or any extended period agreed to, in writing, by the applicant and the planning authority.

Local reviews apply where applications for local development are delegated to an officer for decision, rather than elected members of the planning authority taking the decision. In all other cases, a right of appeal to Scottish Ministers applies. Where a decision is issued, local reviews, or appeals, must be requested within three months from the date of the decision. In relation to reviews and appeals where a decision has not been issued, these must be sought within three months of the end of the statutory period or any agreed extended period.

Some developments need a specialist report, for example on retail, transport or noise. Whether any specialist assessments are needed will depend on the type of development and its location. An application may also need an EIA, where there is likely to be a significant effect on the environment (see next section).

A person who intends to start development that has been granted planning permission (including planning permission in principle) must, once they have decided the date they will start work, inform the planning authority of that date as soon as is practicable and before starting work. There is no minimum period of notice.

The applicant is required to submit other information set out in the Town and Country Planning (Development Management Procedure (Scotland) Regulations 2013 which may be useful to the planning authority, including:

• the full name and address of the person intending to carry out the development
• the full name and address of the landowner, if they are a different person
• the full name and address of any site agent appointed in respect of the development
• the date of issue and the reference number of the planning permission

Some developments require an on-site notice while a development is being carried out.

A person who completes a development for which planning permission (including planning permission in principle) has been given must, as soon as practicable after doing so, give notice of completion to the planning authority.

Environmental impact assessments

An EIA is mandatory for projects identified in Schedule 1 of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017 and may be required for projects identified in Schedule 2. Some geothermal projects may be relevant to Schedule 1 of the Regulations, such as large scale or more complex projects which have groundwater abstraction, or recharge schemes, where the annual volume of groundwater abstracted or recharged is equivalent to, or exceeds, 10 million cubic metres. Guidance for establishing whether an EIA is required is available in Planning Circular 1/2017.

Where an EIA is required, the developer needs to compile a detailed report about the likely significant environmental effects of a development. The environmental information compiled by the developer is known as an EIA Report. The EIA Report (and the application to which it relates) must then be publicised.

Certain designated sites are defined in regulation 2(1) of the Regulations as ‘sensitive areas’ and the thresholds/criteria outlined in Schedule 2 do not apply. Special considerations apply to these ‘sensitive areas’. All developments of a type listed in Schedule 2 and which are due to be located in a ‘sensitive area’, must be screened for the need for an EIA. These ‘sensitive areas’ include:

• Sites of Special Scientific Interest
• land subject to Nature Conservation Orders
• European sites
• World Heritage Sites
• Scheduled Monuments
• National Scenic Areas
• National Parks
• marine protected areas

The applicant is responsible for preparing an EIA Report. The information for inclusion in an EIA Report is outlined in Schedule 4 of the 2017 Regulations. The 2017 Regulations also require the developer to have the EIA report prepared by competent experts. The report must be accompanied by a statement outlining how the competence of the experts is demonstrated, such as their relevant expertise or qualifications. The emphasis of the EIA Report is on the main, or significant, environmental effects to which a development is likely to give rise.

A number of aspects of the environment may be significantly affected by a project, including:

• population
• human health
• biodiversity
• land
• soil
• water
• air
• climate
• landscape
• material assets (including architectural and archaeological heritage)
• the interaction between any of the above

Consideration should also be given to the likely significant effects of:

• the use of natural resources
• the emission of pollutants
• the creation of nuisances
• the elimination of waste

Public bodies must make environmental information available to any person who requests it. Where a developer has given the planning authority notice in writing of the intention to submit an EIA Report, the authority must inform the consultation bodies and remind them of their obligation to make available, if requested, any relevant information in their possession.

The consultation bodies are:

• any adjoining planning authority, where the development is likely to affect land in their area
• NatureScot
• Scottish Water
• SEPA
• Historic Environment Scotland
• any other bodies designated by statutory provision as having specific environmental responsibilities

Planning authorities will often have useful local and specialised information. It can be helpful to those preparing an EIA Report to obtain information from the consultation bodies.

Before making a planning application, a developer may seek a formal scoping opinion from the relevant planning authority. The opinion allows the developer to be clear about what the planning authority considers the significant effects of the development are likely to be and, therefore, the topics on which the EIA Report should focus. The planning authority must adopt a scoping opinion within 35 days of receiving a request, or longer if the authority and developer agree to this in writing. Where the planning authority fails to offer a scoping opinion, the developer may request a scoping direction from Scottish Ministers. Scottish Ministers must make a scoping direction within 35 days from the date of receipt of a request, or such longer period as they may reasonably require.

The planning authority must consult the consultation bodies on the EIA Report. For local EIA developments, the planning authority should determine the planning application within four months from the date of receipt of the EIA Report, instead of the normal two months from the receipt of the planning application.

European designations

Developments likely to have an adverse effect on European designations (including Special Protection Areas, Special Areas of Conservation, and certain Ramsar sites) will be subject to an appropriate assessment. Qualifying interests for European designations may not be confined to the boundary of a designated site. Where an assessment is unable to conclude that a development will not adversely affect the integrity of the site, development can only be permitted where there are no alternative solutions, and there is an imperative reason of overriding public interest. These can be of a social, or economic, nature except where the site has been designated for a European priority habitat or species. In these cases, consent can only be issued where the reasons for overriding public interest relate to human health, public safety, beneficial consequences of primary importance for the environment or other reasons, subject to the opinion of Scottish Ministers. If this is the route that is taken, there is also a need to make sure that compensatory measures are taken. These measures will need to fully offset the damage which will or could be caused to the site. Guidance on Habitats Regulations Appraisal is available from NatureScot.