Electricity Act 1989 - sections 36 and 37: applications guidance

1. Introduction

1.1. Purpose and Background

1.1.1 This guidance is intended to set out the procedure for applications made under section 36 or section 37 of the Electricity Act 1989 ("Electricity Act"), principally where the development concerned is Environmental Impact Assessment (EIA) development.

1.1.2 In Scotland, any proposal to construct, extend, or operate an onshore electricity generating station with a capacity of over 50 megawatts (MW), or to install and keep installed an overhead electric line, requires the consent of Scottish Ministers under sections 36 and 37 of the Electricity Act respectively. Such applications are processed on behalf of the Scottish Ministers by the Energy Consents Unit ("ECU") Scottish Government - Energy Consents. Section 57(2) of the Town and Country Planning (Scotland) Act 1997 ("TCP(S)A") also allows the Scottish Ministers, on granting consent under section 36 or 37, to direct that planning permission for that development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.

1.1.3 Electricity generating stations encompass a range of technologies including wind turbines, thermal generation and solar arrays. In addition, as set out in the Chief Planner Letter dated 27 August 2020, the Scottish Government considers that a battery installation generates electricity and is therefore to be treated as a generating station.

1.1.4 This guidance does not relate to applications for variations of consent made under section 36C of the Electricity Act, nor does it specifically deal with applications made under section 36 or 37 of the Electricity Act where the development concerned is not EIA development. Guidance on the process for applying for variations to existing section 36 consents under section 36C of the Electricity Act is available at the following link: Energy consents: applications for variation of section 36 consents guidance. Guidance on the process of applying for consent under section 37 of the Electricity Act for overhead lines which are not EIA development is available at the following link: Energy consents: overhead line applications without an EIA report.

1.1.5 Onshore generating stations which will have a capacity of 50MW or less when constructed are not within the scope of the Electricity Act, and such applications require an application for planning permission to be submitted to the relevant local planning authority under the TCP(S)A. Applications that relate to a generating station with a capacity of 50MW or less are not dealt with in this guidance.

1.1.6 The Scottish Ministers are also responsible for determining applications for consent for generating stations offshore with an installed capacity exceeding 1MW in Scottish Territorial waters and over 50MW in the Scottish Renewable Energy Zone. Such applications are processed on behalf of Scottish Ministers by Marine Scotland Licensing Operations Team. This guidance does not relate to offshore generating stations and advice on such applications can be found at Marine and fisheries.

1.1.7 The main legislation applicable for onshore applications made under section 36 and 37 of the Electricity Act and relevant to this guidance is as follows:

• The Electricity Act 1989;
• The Town and Country Planning (Scotland) Act 1997 in relation to the ability for the Scottish Ministers to direct that planning permission shall be deemed to be granted for the development under section 57(2);
• The Electricity (Applications for Consent) Regulations 1990; and
• The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017.