It was announced at the beginning of the meeting that Trudi Craggs is now Chief Reporter along with Scott Ferrie, with Robert Seaton taking over Trudi’s position as Assistant Chief Reporter
Over the past year DPEA has seen a 77% overall increase in cases referred to them. There has been a 33% increase in the number of reports to ministers, but overall a decrease in meeting various targets for handling cases due to the volume increase. Overall, it is felt that casework is likely to increase still further.
This increased case load is largely due to a combination of short term let (STL) appeals and wayleave applications related to grid expansion, particularly ASTI projects (Accelerated Strategic Transmission Investment). Energy applications account for 95% of the increase in cases E.g. There were 10 wayleave applications last year and 963 such applications this year (all wayleaves are energy related). DPEA is obviously under great pressure and ‘running hot’.
The ECU is also under significant pressure with an increased case load which feeds through to DPEA.
DPEA has increased staffing with nine new Reporters ( 5 replacements and four new posts) and another Reporter joining in July as well as 2 additional self-employed consultant Reporters.
There is also significant pressure on case workers with increased turnover of posts and vacant posts that have only recently been filled.
Despite increase in staffing, DPEA have reached the point where there are sometimes no available reporters when cases are ready to be assigned. As a result, cases are having to be prioritised.
ASTI related cases take top priority, along with gate checks for local authority development plan submissions.
New s.36 applications eg windfarm generation applications, are in a second priority group and are about to be ‘stacked’ ie. delayed in a queue for when reporters become available. Stacking is not possible with caseworkers, who handle the administrative tasks, as they are the front door workers. This situation is likely to persist at least until next year due to the number of CPOs (compulsory purchase orders) likely to accompany s.37 applications for grid expansion, substations etc, although the s.37 ASTI application peak may be cleared by the end of this year.
One or two current s.36 appeals (ie windfarms over 50MW) are likely to be delayed for the same reasons.
Quashing of Wull Muir windfarm planning permission
There was considerable discussion of the consequences and impacts of the quashing of planning permission for the Wull Muir windfarm in the recent Raeshaw Farms court decision because the EIA for the necessary grid connection for that windfarm had not been provided. There are other s.36 applications which are also being delayed whilst similar necessary EIA information is required before the case can be decided.
On schemes at the PLI (Public Local Inquiry) stage those requests for further information were being made by Reporters, but on the large number of undetermined applications at other stages in the planning process the requests have come from staff at the ECU (Energy Consents Unit).
Aileen Jackson pointed out that the majority of developers have responded by stating that they can’t provide details of the grid connection because they don’t know where it will go. Some developers have offered to provide more information about the grid corridor but some have thrown their hands in the air complaining that they simply can’t assist.
Aileen asked who would determine how these cases will proceed and when a decision can be expected.
Robert Seaton responded by saying that it will be up to Reporters to decide whether a grid connection is necessary for a project and therefore whether the Wull Muir decision is applicable. It is likely that this will apply at least for on shore windfarms as this is similar to the Wull Muir case.
Rachel Connor pointed out that NESO (National Energy Systems Operator) had been tasked with eliminating potentially spurious grid connection applications from its queue and that NESO considered that Scotland was already overcapacity in terms of applications particularly from BESS, but also wind generators. A future project without a firm grid connection offer was now unlikely to get one before 2035. This would be likely to impact the ability to provide adequate grid connection EIA information to facilitate award of planning permission and a delay in grid connection will mean a project cannot contribute to Net Zero targets until it is connected.
Scott Ferrie said that grid connection dates are now expected in generation projects for this reason.
DPEA intend to get around the problem of requiring an EIA for the grid connection prior to determining the award of planning permission by awarding a multistage consent and multistage planning conditions, with a requirement in planning conditions that even delayed grid connections are built according to the planning permission granted. The Scottish Government will produce an updated code of practice during the Summer to support this.
Inquiries and the Planning & Infrastructure Act 2025
Aileen Jackson asked if DPEA anticipated there would be any difference in the way wind farms and OHL (overhead line) inquiries would be handled under the new regime for Inquiries announced in the Planning & Infrastructure Act 2025. Robert Seaton responded by saying that they didn’t believe there would be any difference and weren’t anticipating any drop in the number of inquiries being held.
Planning Conditions
Rachel Connor brought up the perennial problem that planning conditions were not always being enforced either at all, or as they were written and attached to a planning permission.
This is resulting in a public loss of confidence in the planning system when neighbours to a development ( particularly on shore wind developments) were suffering significant adverse effects whilst environmental monitoring, preventative measures and mitigation were not being fully employed due to the of ability of planning authorities to apply their discretion and interpretation to avoid enforcing a perceived breach of a condition. This can occur even if a documented breach of a condition is reported to a planning authority by a planning monitoring officer. The current situation is unacceptable.
It was suggested at the meeting that action of inappropriate enforcement of planning conditions by a local authority would be subject to judicial review or report to the Ombudsman.
Rachel explained that the public do not have personal financial means to instigate such legal action and that a referral to SPSO after completion of a two stage complaint procedure takes at least a year and has already resulted in the Ombudsman confirming to Rachel that planning authorities have the discretion whether or not to enforce any breach of planning conditions. She felt that reporters should issue more suspensive conditions to ensure that there would be compliance with essential conditions before any development commenced.
It was suggested that Rachel liaise further with Scottish Government Representatives.
Objective Connect
Rachel also raised the problems with the DPEA’s objective connect (OC) platform which is now used for parties to ‘facilitate’ the lodging of documents to the DPEA website for any inquiry.
In essence, the problem is both the complexity of both understanding the operational requirements and using the OC system, particularly for third parties. It’s not clear what alternative arrangements have been made for those with limited IT skills or IT access. Importantly and of great concern, there is the exclusion of some submissions to OC by third parties by the DPEA without any explanation, such that that submitted information will not be posted on the DPEA case website and would not therefore be considered by reporters in the determination of the case.
Third parties feel that the inability to provide and submit important local information and evidence prejudices the determination. Third parties understand that submissions have already been limited in scope by the Reporter at pre inquiry meetings, but consider that their contributions and submissions generally fall within those predetermined topics. It should be understood and accepted, that members of the public do not have the resources to produce the more polished submissions by developers, planning authorities and other organisations and that this should not be a reason in itself to exclude their submissions from publication and consideration.
Rachel also raised concerns that the exclusion of material evidence falls foul of DPEA Guidance Note (GN) 24, which requires that material information and policy updates or changes should be provided to Reporters at any time before a Decision is issued by Scottish Ministers to ensure correct and sound decision making by Reporters.
Trudi Craggs feels that the submission of documents to an Inquiry is comprehensively dealt with in GN 29. GN 29 tries to deal with the excessive number of documents being submitted by parties to DPEA oral proceedings that are never actually used in evidence by parties. This creates a lot of potentially unnecessary work for caseworkers and Reporters. The aim of GN29 is to reduce the number of documents that reporters are required to read and consider in a case. However, DPEA will look into the concerns raised and try to improve OC user instructions. Trudi also reiterated that if anyone had problems with on line submissions or other administrative matters, that they should speak to the case worker who should be able to help
0 Comments