Electricity Act 1989 - sections 36 and 37: applications guidance

6. Processing of the Application

6.1. Notification Requirements

6.1.1 The details of the consultation requirements in relation to applications, including the consultation processes, when and where public notifications should be published, and timeframes are set out in Part 5 of the EIA Regulations and in the Electricity (Applications for Consent) Regulations 1990.

6.1.2 Public notifications are the responsibility of the applicant and these take the form of advertisements placed in certain prescribed newspapers to inform local communities and the general public of an application being made to the Scottish Ministers. This gives the public an opportunity to make representations to the ECU, where they can provide comments, or support or object to an application. The public notice of the application can be combined with the notification that an application has been accompanied by an EIA report. ECU case officers can provide draft notice templates for use on request and agree dates regarding placing notices at the point of submission of the application.

6.1.3 Applicants should provide a draft notice to the ECU case officer in advance of submitting application documents, and the timescale for publishing the notices requires to be discussed with ECU. As noted at section 5.1 above, at gate check stage 2, two weeks are required to prepare the application for publication on the ECU website. Notice dates require to be discussed and agreed with the ECU case officer to ensure the application is available on the website when the notice is published.

6.1.4 There are additional requirements in Part 5 of the EIA Regulations including a requirement for the applicant to send a copy of the EIA report to the planning authority, and inform the Scottish Ministers of the date this occurred. If the applicant sends a copy of the EIA report to any consultation body (including the planning authority), it must also send with the EIA report a copy of the application and plan, inform the consultation body that representations may be made to the Scottish Ministers, and inform the Scottish Ministers of the name of every consultation body to which the applicant has sent a copy of the EIA report and the date on which the applicant did so.

6.2. Consultation Responses

6.2.1 Consultation responses to the application are published on the ECU portal as soon as reasonably practicable after they are received.

6.2.2 For section 36 applications, the planning authority must serve notification of any objection to the application within four months, or such longer period as may be agreed in writing by the planning authority, the Scottish Ministers and the applicant. For section 37 applications, the planning authority has two months from the date of the application within which to object the application or such longer period as may be agreed in writing by the planning authority, the Scottish Ministers and the applicant.

6.2.3 The ECU expects planning authorities to respond within the relevant statutory periods (four months for section 36 applications and two months for section 37 applications), and any objection not notified within those timeframes may be disregarded by the Scottish Ministers. These periods will only be extended in exceptional circumstances. Where longer periods are necessary, a processing agreement which sets out agreed dates would be drafted by the ECU case officer and agreed between the Scottish Ministers, the planning authority and the applicant.

6.2.4 Where issues or points of clarification require to be resolved, applicants should engage with the relevant party or parties to address or clarify matters during the consultation period. It is important that ECU are kept fully informed of this type of engagement and are involved where required.

6.3. Public Representations

6.3.1 Members of the general public or groups may make representations and comment to the Scottish Ministers on section 36 and 37 applications. Detailed guidance on how to submit representations via the ECU portal is available at the following link: Scottish Government - Energy Consents Unit - Help.

6.3.2 Use of the ECU portal to make representations is preferable. Representations can also be emailed to representations@gov.scot or in writing to: Energy Consents Unit, Scottish Government, 5 Atlantic Quay, 150 Broomielaw, Glasgow, G2 8LU.

6.3.3 Representations are published on the portal as soon as reasonably practicable after they are received.

6.4. Additional information and evidence relating to EIA Reports

6.4.1 To ensure the completeness and quality of the EIA report and to enable Scottish Ministers to reach a reasoned conclusion on the significant effects of the proposed development on the environment, the Scottish Ministers may require the applicant to submit supplementary information known as "additional information", as defined in Regulation 2 of the EIA Regulations.

6.4.2 This can be required in some circumstances to address any issues raised by consultees in relation to insufficient information or to verify information in the EIA report. Details of the requirements relating to additional information, including evidence relating to EIA reports and the publication of additional information, are set out in Part 6 of the EIA Regulations.

6.4.3 It is crucial that applicants make very clear how the additional information interacts with the EIA report. The two documents in effect together become the EIA report for the proposed development going forward and should be easy to read together. The information contained in the additional information should be referenced appropriately to the original EIA report and it should be clear what information, if any, is being replaced.

6.4.4 If the planning authority has yet to formally respond to the initial consultation, any further consultee responses and public representations made in relation to the additional information will be collated and forwarded to the planning authority.

6.4.5 If the planning authority has formally responded to the initial application, it will be asked to respond within 30 days unless an extension is granted, and asked whether it wishes to carry forward previously issued consultation recommendations/conditions, if they remain relevant to the proposed development.

6.4.6 When the ECU receives additional information, a further public notice is required to be placed in the newspapers by the applicant, and a further 30 day consultation period begins. The requirements regarding publication of additional information can be found in Regulation 20 of the EIA Regulations.