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

8. Processing the Application

Consultation

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 (where relevant) and in the Electricity (Applications for Consent) Regulations 1990.

Public notifications are the responsibility of the Applicant, and these take the form of advertisements placed in certain prescribed newspapers, and on the Applicant’s website, 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, 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 prior to the submission of the application.

The public notices issued shall state that members of the public shall have until the end of the statutory period (30 days after the last date of publication of the notices if EIA development, 28 days if not) to submit representations on the application.

As noted above, applications should provide a draft notice to ECU prior to the gate-check stage. 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.

Similar to the scoping stage, a consultee list is prepared and includes the names and contact details (including up to date email addresses) of all consultees. The consultation bodies consulted by the Scottish Ministers at application stage are the relevant Planning Authority, NatureScot, SEPA and 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.

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.

No later than two weeks after the date of the application, ECU will issue its consultation letters to the relevant Planning Authority and to the statutory consultees. These will be copied to the Applicant. The fixed 52 week timeline for the application (containing indicative dated for any PLI that may be required) shall be appended to the consultation letters.

Consultation Responses

Consultation responses to the application are published within the application pages at www.energyconsents.scot as soon as reasonably practicable after they are received.

For section 37 applications, the relevant Planning Authority has two months from the date of the application within which to respond to the application in line with regulation 8(1) of the Consent Regulations.

If a relevant Planning Authority objects to the application within this period and the Scottish Ministers cannot accede to the application subject to such modifications or conditions as will give effect to the objection, or the objection is not withdrawn, that objection shall have the effect of requiring^[3] the Scottish Ministers to cause a public inquiry, as provided for in Schedule 8 of the Act.

The Scottish Ministers expect planning authorities to respond within this statutory period. This period will not be extended by Ministers for priority applications. Any objection not notified within this period may be disregarded by the Scottish Ministers under the provisions of Schedule 8 of the Electricity Act.

Statutory consultees will be afforded the relevant statutory period in which to respond to the application (30 days after the last date of publication of notices if EIA development, 28 days if not (or any later period stated in the notices)).

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.

The Scottish Ministers consider it is important that planning authorities and statutory consultees prioritise their responses to these applications so that their full consultation responses are made within the statutory periods allowed for.

Public representations

Members of the general public or groups may make representations and comments to the Scottish Ministers in writing on section 37 applications within the timescale set out in public notices. Representations can also be emailed to representations@gov.scot.

Representations will be published within the application pages at www.energyconsents.scot as soon as reasonably practicable after they are received.

Ministers are entitled to disregard any public representations made after the period stipulated in the public notice. The decision to accept any representations on an application after this date will be at Ministers’ discretion. Acceptance of late representations shall not affect the processing of an application in accordance with the fixed 52 week timeline. After the report of any public inquiry has been received by Ministers, further representations will not normally be accepted unless they raise relevant new matters which have not been considered by the Reporter.

Cases where no public inquiry is held

If a Planning Authority objects to a section 37 application within the statutory time period, and its objection is not withdrawn, and the Scottish Ministers cannot accede to the application subject to such modifications or conditions as will give effect to the objection, Scottish Ministers must cause a public inquiry to be held and the application will be passed from the ECU to DPEA.

However, a public inquiry is not required where the Scottish Ministers propose to grant the application subject to modifications or conditions that will give effect to the Planning Authority’s objection.

Where the Planning Authority has not objected but other parties have, Scottish Ministers will consider those objections together with all other material considerations and determine, at their own discretion, whether a public inquiry should be held. This determination will be made soon after the end of the two month period allowed for the Planning Authority response, and no later than 13 weeks after an application has been made.

The time taken to determine the application will depend on the nature of the evidence and the issues raised in each case. Ministers’ ambition is that decisions will be made no later than 52 weeks after the date of the application being submitted to the ECU.

Process for passing cases to DPEA for a public inquiry

An independent Reporter will be appointed by Scottish Ministers to conduct the public inquiry. Once passed to the DPEA, the Scottish Ministers cease to have a role in the application until the inquiry has concluded and the report of the inquiry is received.

For cases which appear to ECU to be likely to proceed to public inquiry, DPEA will aim to identify the Reporter during the initial consultation period. This is so that the Reporter can begin to read the application documentation and supporting material and, as they come in, statutory consultation responses, public representations and the Planning Authority response.

This will assist with early identification of the key issues to be considered in each case, facilitating a prompt progression on to the formal public inquiry process in accordance with the fixed timescale which ECU has already established (in consultation with DPEA).

At the end of the statutory consultation period, in cases where a public inquiry is to be held, ECU will write to the Applicant and the Planning Authority seeking position statements on what further procedures are required. Depending on the nature of the consultation responses, statutory consultees may also be asked for their position on what procedures are required. The case will be passed to DPEA once the position statements have been requested.