Planning appeals and other cases: guidance on taking part

Wind Energy Proposals Under Section 36 of the Electricity Act

Wind Farm Proposals under the Electricty Act

This note applies to wind energy applications which fall to be determined by Scottish Ministers under the Electricity Act.  This applies to proposals of 50 MW and over where the following legislative provision applies:   

• The Electricity Act 1989  
• The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017

An example of a reporter’s report on a Section 36 proposal can be viewed here.   Decisions in these cases are not delegated to reporters and are made by Scottish Ministers.   

Wind Farm Proposals under 50MW

These fall to be determined under the Town and Country Planning (Scotland) Act 1997 and The Town and Country Planning (Appeals) (Scotland) Regulations 2013 .

For these proposals determination is to be made in accordance with the development plan unless material considerations indicate otherwise.  These decisions are delegated and an example of a reporter’s decision on a windfarm, under the Planning Act, can be viewed here. 

Unlike for larger proposals under Section 36 it is for the reporter to determine the process whether by site visit, further written submissions, hearing or more rarely by inquiry. 

The typical issues for consideration as set out below are likely to be similar for both Section 36 cases and planning appeals albeit the procedure to be followed may differ. 

The lack of further process in a planning appeal case is not an indication that the reporter’s assessment will be any less detailed or thorough.  Rather any further process reflects whether the reporter requires further information to reach a decision. Given the emphasis on all the required information being submitted with the appeal these decisions are sometimes issued with little further process other than an unaccompanied site visit.    

These cases are usually still subject of an Environmental Impact Assessment Report.  This is a requirement of The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017

Other Electricity Proposals

This guidance is only directly applicable to Section 36 wind farm proposals.  However, there is a similar process and approach to applications for high voltage overhead lines which fall under Section 37 of the Electricity Act.  Separate guidance is to be prepared on that process. 

Section 36 Consenting Process

The consenting process is administered by the Scottish Government Energy Consents Unit.  Guidance on the process as a whole is contained in its Applications Guidance Electricity Act 1989 - sections 36 and 37(February 2022).

Cases are only referred to the Planning and Environmental Appeals division for appointment of a reporter in certain limited circumstances.  This usually applies where there is an objection from the planning authority or more rarely from a statutory consultee such as NatureScot. 

Schedule 9 of the Electricity Act 

This requires Scottish Ministers, to have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest and protecting sites, buildings, and objects of architectural, historic or archaeological interest.  Schedule 9, paragraph 3(3) also requires Scottish Ministers to avoid, so far as possible, causing injury to fisheries or to the stock of fish in any waters.  

There is also a requirement to consider the mitigation to be applied in relation to these effects. 

There is no guidance as to how Schedule 9 should be applied.  It does not require all the listed environmental matters to remain unaffected nor all significant effects to be avoided. There is no suggestion that Schedule 9 is the only consideration or that its provisions should be applied as development management criteria.

The Development Plan

In Electricity Act cases the development plan does not have the same statutory role as in a planning application or appeal.  Even although the Section 36 application will almost always include a request for a deemed planning permission. 

National Planning Framework 4 is part of the development plan as recently adopted.  It applies along with the local development plan in all planning authority areas in Scotland.  It contains a specific policy (Policy 11 on Renewable Energy) along with other relevant topic specific policies. It stresses the importance of the global climate emergency and the nature crisis.    

The development plan contains policies relating to many of the environmental factors listed in Schedule 9 of the Electricity Act.

Consequently, it will be an important consideration.

Onshore Wind Policy Statement 

This statement sets an overall ambition of 20 GW of installed onshore wind capacity in Scotland by 2030.  It recognises this will change the landscape. It supports actions to address the nature and climate crisis. 

Environmental Impact Assessment Report 

This is a statutory requirement and an important document in the Section 36 process. It may be subject to updating through the provision of Further Environmental Information. There are statutory provisions for consultation and advertisement of these assessments.  

The requirements are out in the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017. 

Other Relevant Legislation

The Climate Change (Scotland) Act 2009, section 44

This is often quoted and places specific duties on Ministers.  The question of its relevance is addressed in the decision of the Inner House (NLEI Ltd against the Scottish Ministers [2022] CSIH 39). This indicates that the Climate Change Act does not advise reporters on how the level of importance to be afforded to renewable energy is to be weighed against other factors.

Conservation of Species and Habitats Regulations 2017 in terms of the duties that apply to the conservation of natural habitats and the protection of species. 

Typical Issues Considered

• Landscape and Visual Impact Assessment (LVIA): likely to include a map showing the zone of theoretical visibility, photomontages and wirelines from agreed viewpoints to gain general impressions of views of a wind farm.
• Cumulative Effects: Asses the proposed development’s individual effects against a baseline, this includes development that is already in place or has consent.
• Residential Visual Amenity Assessment (RVAA): focused on residential properties most directly affected – approximately 1.5 to 2 km radius – around the proposed development.
• Cultural Heritage: May be informed by a consultation response from Historic Environment Scotland.
• Noise: Determine acceptable limits on emissions of noise from the development at nearby properties.
• Aviation including lighting: Wind turbines can potentially impact a range of aviation features and the Civil Aviation Authority requires lighting for structures over 150 metres high.
• Transport: Impacts are likely to focus on the temporary construction phase.
• Forestry: Comparison between what would have happened in forestry management without the wind farm and the changes that would occur with the wind farm.
• Nature Conservation and ecology: The reporter’s report should include reasoning and a recommendation on the outcome of any appropriate assessment under the Habitats Regulations.
• Soils, including peat habitat and management: This will include analysis of the Carbon Calculator, Peat disturbance, Peat Slide Risk Assessment and Peatland habitat.
• Private water supplies: Planning conditions may typically include pollution control measures, monitoring and even emergency measures if the water supply is disrupted.
• Tourism and recreation: Tourists and those enjoying the countryside for recreation are often regarded as particularly sensitive visual receptors in landscape and visual assessment.  
• Micro-siting: Provision may be issued to a specific purpose, for instance away from areas of deeper peat or within a specified distance of watercourses.
• Commencement and site restoration: A 3-year time limit for commencement is generally applied, but this can vary.

Section 36 and Conditions

There are conditions attached to a Section 36 consent (Section 36 conditions) and conditions attached to a planning permission (including deemed planning permission).

Model conditions have been published and these are an important starting point. Any standard wording should remain appropriate to the circumstances of the proposal and site.

Reporters should take account of views of consultees and bear in mind that the planning authority may use the mechanisms provided in the Town and Country Planning (Scotland) Act 1997 to enforce conditions of deemed planning permission. These mechanisms are not available to enforce conditions attached to the section-36 consent itself.

Planning Conditions

Any planning conditions should comply with the guidance set out in Circular 4/1998 – the use of conditions in planning permissions. Unreasonable and unenforceable conditions do not become acceptable just because the parties agree to them.

A hearing session for conditions is normal. This may allow for matters relevant to the conditions which arise from other inquiry, hearing, or written submissions to be addressed.  

There is considerable scope for agreeing a suite of conditions based on the model conditions. The applicant can take the lead in preparing the initial draft. Where disagreement remains, alternative wording should be set out. Other parties may also need to be involved.

Scottish Ministers expect the matter of conditions to be addressed in the reporter’s report irrespective of the reporter’s recommendation.

Revised detailed wording of any conditions discussed at the hearing is normally submitted in writing. The conditions hearing session agenda should make it clear what aspects are to be discussed to ensure proper scrutiny. 

There should be a section of the reporter’s report on conditions to set out any areas of dispute and reasoning for the conditions that are recommended. The recommended conditions should be included as an appendix to the report. 

Consultations and Representations 

The reporter will consider the consultation responses and the matters raised in representation in the context of the relevant statutory requirements, policy and guidance.

The number of representations against a proposal is not a determining factor. 

The views of local residents and others will be carefully considered by the reporter along with all the other relevant evidence.    

Consultation/engagement with communities is built into the earlier stages of the consenting process and is not a function of the Section 36 inquiry process.