Government Consultation on Electricity Infrastructure Consenting in Scotland – Some pointers to help with your response

Scotland Against Spin will be submitting a response to this consultation exercise, but for now what follows is intended to assist others in submitting their own responses.   The deadline for responses is 29^th November 2024 so it is vital that responses are submitted by that date.   The  full papers – proposals (summarised below) and an accompanying paper – can be found here: https://www.gov.uk/government/consultations/electricity-infrastructure-consenting-in-scotland

This is arguably the most important planning consultation document for years.  It introduces proposals, some of which will be very contentious, for speeding up the planning system in Scotland for large infrastructure projects, and network scale applications, mostly onshore (Section 36 and Section 37 applications). Offshore applications also feature.    The document suggests that responding by answering their questions will be more effective than a free-form response, and it is suggested that responses be sent via this link: https://energygovuk.citizenspace.com/energy-infrastructure-planning/electricity-infrastructure-consenting-in-scotland/  However, any form of response is legitimate and responses can also, if more convenient, be submitted by email to this address: scottishelectricityconsenting@energysecurity.gov.uk

Always remember: he/she who controls the questions format also controls the agenda.   If you don’t like the way the questions have been framed, then do not feel constrained to answer them.   Any response you submit is valid, and you should feel free to reply to the consultation however you wish and to make whatever points you want, so long as they are relevant.

It is claimed that “The reforms seek to consult communities at an early stage. This is not about making quick decisions, but instead making considered decisions as efficiently as possible. The energy transition is one that will be achieved by cooperation, not coercion, which is why I believe that local communities should be consulted on applications early, influencing them from the outset….These reforms are also not about pushing through inappropriate developments. Our goal is to process applications in a more efficient manner, ensuring they are accepted or declined based on a more streamlined and effective system.”  But it also says: “The current system is inefficient and unpredictable, providing no certainty on how long consent will take. For those desperate to bring new energy generating assets onto the grid, it presents a barrier to attracting investment and delivering yet more clean energy to homes and businesses.”   Our suspicion is that this represents the real agenda underlying this important and potentially very worrying development.

The devil is in the detail, and we urge those with the time, inclination and knowledge to read the whole document carefully.   Briefly, however the main areas it covers are (pages 13-34):

• Pre-application requirements
• Applications
• Amendments (where a developer wants to change the specifications after submission but before a Decision)
• Public Inquiries
• Necessary Wayleaves (Access to private land to put in pylons etc)
• Statutory Appeals to Decisions
• Variations – where the developer wants to change the project after a Decision

1. Pre-application requirements
   This essentially forces a duty to consult communities and statutory consultees at an earlier stage. One of the outputs would be a statement of how the consultation was carried out and a summary of its findings. This consultation may be multi-stage and the results published.  An ‘Acceptance stage’ will be introduced to ensure applications are robust enough for scrutiny and the Scottish Government (SG) will introduce fees for processing this.  This sounds fine and dandy, but this is only at the pre application stage and responses will be sent only to the applicant – in other words, responses/objections/concerns will not be published on any Local Authority/SG website and so may effectively be ignored or censured by the applicant.   We are concerned that as described in the consultation document (which in this area we feel lacks sufficient detail) the strong implication is that members of the public must deal direct with the developer at the pre application stage,   More attention needs to be given to Data Protection issues, to protect members of the public.   We also feel that it is wrong in principle that the developer, under these proposals, would apparently be in charge of the process at this stage – it’s putting the fox in charge of the hen house.
   Instead, the value of pre application comments should be in sending those comments directly to the consenting authority and LA and being published (with personal details redacted), so that an EIA scoping response is framed appropriately and so that the ‘meaningful’ response to the pre application consultation by the developer is actually transparent, accountable and auditable.
   Our view is that the comments should be sent to the SG or LA in the first place so that they can be properly recorded and then from there they are sent on to the applicant.    We urge those responding to endeavour to make these points, while welcoming the principle of pre-application requirements being introduced.   Another point worth raising is: what happens for a <50MW windfarm, which is not automatically required to have an EIA (depends on screening decision by the LA). Does that mean no community consultation at the pre-application stage? That’s not clear, and it should be.  We recommend that any responses should also make this point.
2. Application procedures
   a) Information requirements.  The consultation argues that one of the biggest causes of delays is the lack of detail in applications, thus creating long discussions with applicants to obtain a complete application.  New information requirements are  proposed and applications lacking all the specified requirements will be knocked back.
3. b) Statutory consultees. A forum for the Energy Consents Unit and Statutory consultees is proposed to improve communications. Also to bring in additional technical expertise to support consultees.  Time limits would be set for responses.
4. c) Amendments. A source of delay is amendments brought in by applicants. A limit within the process is proposed after which no further amendments can be brought.

3. Public Inquiries
   This is hugely important. At present, an objection from a Local Authority triggers a Public Inquiry. The consultation paper argues that this ought not to be necessary in all cases; instead a Reporter appointed by a Minister should decide the best way of reaching a decision: “The legislation would provide that the procedures to be adopted for that examination would be at the discretion of the appointed person. That person may decide that the evidence available to appointment is sufficient, and that no further procedures are required. If that person determines that further procedures are required, they may specify a site inspection, further written submissions, hearing sessions, public inquiry sessions, or a combination of these.”
   We do not wish to see any watering down with regard to public inquiries.
4. Variations
   The main proposal is that the SG take control of the consenting process for variations. There is also a section on variations without an application, where for example new scientific insights or environmental factors need to be included, or redundant aspect of a Consent removed. SG wants powers to modify, revoke or suspend consents.
5. Wayleaves
   The main proposal is that the SG takes powers to charge fees for processing Wayleaves applications.
6. Statutory Appeals and Judicial Reviews
   The proposal is to unify the process for challenging Decisions and the time allowed to lodge an Appeal to 6 weeks. Our view is that the proposed changes are about making it harder to appeal successfully, by reducing both the avenues available and the timescale for getting organised.   This claimed justification strikes us as particularly disingenuous: “Creating a unified system would make it simpler for individuals to launch challenges which could help to reduce overall timescales.”   In reality, we suspect this is what it’s really about: “Where a challenge is brought, any work on the electricity infrastructure tends to be paused until the outcome of the challenge is known which creates development and investment delays. With criteria for bringing a challenge set out in legislation this makes the grounds for challenge clear. A shorter period for bringing a challenge would reduce the time of uncertainty that a challenge will be brought, and the consequences for a project being paused or commenced at risk.”   Indeed, this gives the game away.   The proposed changes are about pushing through more “renewables” infrastructure, doing so faster, and reducing risk (and therefore costs) for developers.    If you do nothing else, please object to the proposed changes in respect of the appeals process.

Transitional arrangements

It is proposed that all applications already being processed when the new system comes into force will be consented under the new system.  This has the potential to be problematic.   If you are affected by an ongoing application, where any aspects of the proposed changes might adversely affect your objections, then we suggest you oppose the planned transitional arrangements.   If nothing else, the proposed changes to the appeals process could be profoundly detrimental.  

Generally

To this day there is not a level playing field, and these proposals won’t create one..   Applicants can far more readily afford to pay expensive lawyers and consultants to fight their corner than can objectors.   If government genuinely wishes to see communities properly consulted, considered decisions made, and inappropriate developments turned down, then the playing field should be levelled.   We have long argued that funding should be made available to enable objectors to present their objections in a professional way.   This seems like a good opportunity to make that case again.   After all, among the proposed changes we find this (on page 22): “Providing additional specialist support to facilitate the statutory consultees’ ability to respond to the Scottish Government’s consultations, to manage highly technical matters relating specifically to electricity infrastructure”.    We say it’s beyond time to provide specialist support (or funding to facilitate specialist support) to objectors.   That is what our Petition to the Scottish Parliament requests and it has the support of the Petitions’ Committee. https://www.parliament.scot/get-involved/petitions/view-petitions/pe1864-increase-the-ability-of-communities-to-influence-planning-decisions-for-onshore-windfarms

We hope the above provides a useful summary of the main changes proposed, and some of the problems that may be associated with those changes.   If you have any detailed questions, contact us and we will try to help answer them.   But remember – time is short.

Scotland Against Spin –  8^th November 2024