Electricity Act 1989 - sections 36 and 37: applications guidance

4. Environmental Impact Assessment

4.1. EIA

4.1.1 EIA is a means of drawing together, in a systematic way, an assessment of the likely significant environmental effects arising from a proposed development. The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 ("the EIA Regulations") apply to applications under sections 36 and 37 of the Electricity Act and set out the legislative requirements of the EIA process.

4.1.2 EIA is a process that consists of:

• the preparation of an EIA report by the applicant;
• the carrying out of consultation, publication and notification at certain stages of the process;
• the examination by the Scottish Ministers of the information presented in the EIA report and any other environmental information; and
• the reasoned conclusion by the Scottish Ministers on the significant effects of the development on the environment, and the integration of that reasoned conclusion into the decision notice issued in respect of the application.

4.1.3 Developments falling within a description in Schedule 1 to the EIA Regulations always require EIA. Schedule 1 specifies that the following will require EIA:

• the carrying out of development to provide a nuclear generating station or other nuclear reactors (except research installation for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load);
• the carrying out of development to provide a thermal generating station with a heat output of 300 megawatts or more;
• construction of overhead electrical power lines with a voltage of 220 kilovolts or more and a length of more than 15 kilometres.

Any change to or extension (including a change in the manner or period of operation) of such development, where the change or extension in itself meets the thresholds or description of development above, will require EIA.

4.1.4 Development of a type listed in Schedule 2 to the EIA Regulations may also require EIA. The following developments will require EIA where the development is likely to have significant effects on the environment by virtue of facts such as its nature, size or location:

• the carrying out of development to provide a generating station;
• the carrying out of development to provide an electric line installed above ground with a voltage of 132 kilovolts or more; in a sensitive area; or with the purpose of connecting to a generating station requiring consent under section 36;
• any change to or extension (including a change in the manner or period of operation) of these types of development (or of development of a description listed in schedule 1) where that development is already authorised, executed, or in the process of being executed, and the change or extension may have significant adverse effects on the environment.

4.1.5 A prime consideration in developing a proposal is whether it is likely to have significant adverse impacts on the environment. If the development is EIA development, an EIA report will be needed to support an application. As an indication, most section 36 applications for onshore wind development will constitute applications for EIA development requiring an EIA to be carried out.

4.2. EIA Screening

4.2.1 The applicant may themselves decide at the outset that an EIA is required, or alternatively they have the option of asking for the Scottish Ministers' opinion as to whether an EIA will be required in support of their proposed development. The Scottish Ministers' formal opinion on whether a development is EIA development or not is termed a "screening opinion". Scottish Ministers may also adopt a screening opinion at their own volition.

4.2.2 Part 2 of the EIA Regulations sets out the steps both the applicant and Scottish Ministers must take in relation to screening opinions. Where an EIA screening opinion is requested by the applicant, the applicant must submit the request for a screening opinion and accompanying information in accordance with Regulation 8 of the EIA Regulations. The supporting information required is set out in Regulation 8(2), and should be compiled taking into account the selection criteria set out in Schedule 3 of the EIA Regulations. Applicants can submit screening requests via the Energy Consents Portal.

4.2.3 The Scottish Ministers must consult the relevant planning authority for its views on whether the proposed development is EIA development (unless the planning authority has already conveyed its views to the Scottish Ministers). Depending on the nature of the proposed development and/or environmental designations or sensitivities within the proximity of the proposed development, the Scottish Ministers may also seek advice from environmental agencies (NatureScot, Scottish Environment Protection Agency, and Historic Environment Scotland). The planning authority has three weeks to provide its views to the Scottish Ministers, or the Scottish Ministers may determine that a longer period applies.

4.2.4 Where an EIA screening opinion is requested, Regulation 9 sets out that screening opinions should be adopted by the Scottish Ministers on or before the "relevant date", meaning the earlier of:

• three weeks, or such longer period as may be agreed in writing between the Scottish Ministers and the developer, beginning with the date by which the planning authority are required to give their views (or the date on which the Scottish Ministers received their views, if earlier); or
• 90 days beginning with the date the screening request is received.

Where the Scottish Ministers consider that due to exceptional circumstances relating to the nature, complexity, location or size of the proposed development that it is not practicable for them to adopt a screening opinion within 90 days of receipt of the request, they may extend that period by notice in writing given to the developer.

4.3. EIA Scoping

4.3.1 A scoping opinion is an opinion adopted by the Scottish Ministers outlining the scope and level of detail of information to be provided in an EIA report that will accompany an application under section 36 or 37 of the Electricity Act. A scoping request can be submitted by the applicant seeking the scoping opinion. Part 4 of the EIA Regulations outlines the steps both the applicant and Scottish Ministers must take in relation to scoping requests and scoping opinions.

4.3.2 A request for a scoping opinion must be accompanied by the information set out in Regulation 12(2) of the EIA Regulations, and include key details of the site and the proposed development. When an applicant requests a scoping opinion, they are required to set out the key details and matters for consideration in a scoping report which is included with the request.

4.3.3 All scoping requests are submitted by the applicant via the Energy Consents Portal. Where applicants have undertaken initial site survey work to inform the scoping process (such as initial bird surveys or peat probing), this information should be provided within or alongside the scoping report.

4.3.4 The Scottish Ministers must consult the following consultation bodies before adopting a scoping opinion:

• the relevant planning authority;
• NatureScot;
• the Scottish Environment Protection Agency (SEPA);
• Historic Environment Scotland (HES); and
• any other relevant public bodies with specific environmental responsibilities or local and regional competencies who the Scottish Ministers consider are likely to have an interest.

4.3.5 The applicant should submit a consultee list for review by the ECU that will include the names and contact details (including up to date email addresses) of the relevant consultees as set out in paragraph 4.3.4 above.

4.3.6 Following the receipt of the scoping request, ECU will consult consultees (directing parties to the ECU portal to view relevant information) on the proposed scope of the EIA report.

4.3.7 Once the consultation responses are received, they are taken into account in the preparation of the scoping opinion. Where a scoping opinion is adopted, the EIA report must be based on that scoping opinion and must include the information that may reasonably be required for reaching a reasoned conclusion on the likely significant effects of the development on the environment, taking into account current knowledge and methods of assessment.

4.3.8 The Scottish Ministers should adopt the scoping opinion within nine weeks of the request, or such longer period as they may reasonably require. As a guide, Table 2 below sets out the consultation timescales for the scoping stage (although timescales may be longer where required):