Priority Applications for Transmission Infrastructure guidance: Section 37 of the Electricity Act 1989

2. Background

In Scotland, most proposals to install and keep installed an overhead electric line require the consent of the Scottish Ministers under section 37 of the Electricity Act. Such applications are processed on behalf of the Scottish Ministers by the Energy Consents Unit (“ECU”). Section 57(2) of the Town and Country Planning (Scotland) Act 1997 (“TCP(S)A”) also allows the Scottish Ministers, on granting consent under 37, to direct that planning permission for the overhead line and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.

The Scottish Ministers have an ambition to determine priority applications under section 37 (with or without a public inquiry) within 52 weeks of the date of application. This is to facilitate the delivery of net zero and ensure energy security. Achieving this 52 week ambition will present significant challenges, and will require substantial changes to the way applications are made and processed:

• In accordance with the pre-application guidance for Section 37 EIA applications, before applications are made Applicants should engage with statutory consultees, the community and the relevant Planning Authority^[1] before and throughout the EIA scoping process, and will need to keep ECU advised of the programming of their future applications.
• Applications will need to be complete, supported by all necessary environmental information, and are not expected to be altered after they are made.
• ECU will process representations and consultation responses within statutory timescales, swiftly pass cases to Planning and Environmental Appeals Division (“DPEA”) if a public inquiry is to be held, and issue decisions soon after the report of that inquiry is received.
• The relevant Planning Authority, other statutory consultees and those making submissions on applications will be required to respond within the relevant statutory periods both at EIA scoping stage and at application stage.
• DPEA will need to undertake an efficient and inclusive public inquiry process in accordance with a timetable which will be fixed at the time an application is made, in cases where a public inquiry may be required. All inquiry parties will need to work to this fixed timetable.

This guidance updates and incorporates relevant elements of the Scottish Government Code of Practice for Handling Inquiries under Section 62 and Schedule 8 to the Electricity Act 1989, and elements of DPEA Guidance Notes GN23 and GN8.

Separate guidance covers applications made under Section 36 and non-priority applications made under Section 37. The relevant guidance is available online and has been updated as appropriate to reflect the content of this guidance.

Energy consents - Energy infrastructure - gov.scot (www.gov.scot)

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

• The Electricity Act 1989 (“the Act”);
• 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 “TCPA”);
• The Electricity (Applications for Consent) Regulations 1990 (the “Consent Regulations”);
• The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (the “EIA Regulations”);
• The Conservation of Habitats and Species Regulations 2017. (the “Habitat Regulations”)