GETTING any renewables project through planning can be a very challenging
experience, particularly a major infrastructure project. Pat Hawthorn, a
partner in law firm Shepherd and Wedderburn’s planning and environment
team, points out that, from the outset, the consenting process is not a
rapid affair.

“If the consenting authority follows the process properly, then it should
be approving strong projects. The whole system should be geared towards
delivering the right decision at the end,” she notes.

Shepherd and Wedderburn has worked on offshore wind projects north and
south of the border over the past ten years and Hawthorn points out that
the two jurisdictions have some real differences when it comes to the
approvals process.

“The English system is a labour-intensive and legalistic process. What it
has going for it though, is that decisions have to be made within a certain
timeframe. We have worked within the English process for a number of major
offshore wind farm applications now, and it is a great help to know that a
consent or refusal has to be delivered within a fixed period of time,
broadly speaking,” she says.

The English approvals process is designed to ensure that proposals undergo
extensive public consultation (arguably to the point of consultee fatigue
on occasion) and are thoroughly tested in a series of open hearings.

By way of contrast, Hawthorn notes, the Scottish approvals process is based
on the 1989 Electricity Act, which was not designed to deliver the scale
and complexity of infrastructure involved in offshore wind projects.
“We are working with a different generation of consenting regime here in
Scotland, one that the offshore industry, lawyers and Scottish Government
are trying to upgrade to make ‘fit for purpose’. We are in a much better
place now than we were five years ago,” she explains. “However, it begs the
question of whether we persist with incremental improvements and amendments
to the Act, or instead, introduce a new process for significant
infrastructure at some stage, as has been done in England.”

The last thing anyone wants is to stall large-scale development across the
renewables sector while a new Act is being drafted, consulted on and
finally turned into law.
In some respects, the UK Government got lucky with the timing of the
introduction of its new Planning Act. It was introduced in 2008, just in
time for a very significant offshore wind licensing round (and a rather
large nuclear facility).

One of the most important issues for Scotland’s consenting regime to get to
grips with, Hawthorn suggests, is that if it takes up to a decade for a
complex proposal to go through the preparation, consultation and consenting
process, there has to be a way of accommodating advances in technology
during that period without having to restart the process.

“We have seen, and will continue to see, enormous technological
innovation in renewables,” she says. “As a developer of a project you want
to be able to upgrade your consent to take on board the latest technology –
that is obvious. It is also vitally important, given that the industry as a
whole is under tremendous pressure to cut costs and bring down the price of
renewable power generation.”

In Scotland, the time it takes for decisions to be made is also a concern.
“For the last round of offshore wind licensing we were promised nine months
for consenting decisions. That was massively over-optimistic,” says
Hawthorn. “Developers need some certainty as to when they should expect to
get a decision. It’s getting better, but we should be trying to work to a
programme and I don’t think that 12 months is an unreasonable aspiration if
everyone involved is properly resourced and trained.”

The next licensing rounds are imminent so wholesale review of the system
may not be timely, but we do have time to talk about further improvements
to timescales for decision-making and ensuring our consenting bodies and
statutory consultees are well prepared for what’s coming their way.


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