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The majority of onshore renewable energy proposals represent development and require planning consent, unless they constitute permitted development. Offshore renewable energy developments are subject to a different consenting process.
Significant onshore renewable energy proposals, such as significant biomass proposals and the majority of wind farm proposals, will need to be the subject of an Environmental Impact Assessment (EIA) as they fall within the definition of ‘Schedule 2’ development under the EIA (Scotland) Regulations 1999.
Schedule 2 developments are defined as:
Any ‘thermal’ biomass power stations with a heat output of 300 megawatts would fall under Schedule 1 of the same EIA Regulations, under which EIA would be mandatory. However, it is not anticipated that any such installations are likely to be built in the UK in the near future.
Hydroelectricity proposals which include the construction of dams or other installations for the permanent holding back or permanent storage of water, where a new or additional volume of water held back or stored would exceed 10 million cubic metres, would also fall under Schedule 1 of the EIA Regulations.
The Scottish Governmnet has produced the following advice notes containing detailed information about the EIA Regulations and renewable energy developments:
It is advisable for developers to contact their Local Planning Authority (LPA) at an early stage in the selection and design of potential sites.
In the case of wind energy, proposals can take the form of a planning application for wind monitoring masts, used to help in the assessment of potential sites. Such consultation can usefully inform initial stages of the EIA screening and scoping process. They can also help LPAs assess the potential acceptability of specific proposals, particularly their compatibility with the relevant development plan.
Where a proposal is likely to be potentially contentious, early dialogue and consultation with the general public can be a useful way of spreading information about particular projects. It can also help to counter both uncertainty and misconceptions regarding the nature and impacts of particular proposals.
A public consultation is also a useful means of identifying legitimate public concerns about particular proposals, so that these can be addressed both in the detailed design of submitted proposals, and in associated, supporting information.
Where there is a possibility that an EIA may be required for a proposal, or where it is anticipated that a Schedule 2 proposal may not have sufficiently significant adverse effects to warrant an EIA, developers should formally request a screening opinion from the LPA. The purpose of a screening opinion is to inform the developer as to whether or not the LPA considers that a proposed development such as a wind farm or biomass power station constitutes EIA development, based on the selection criteria in Schedule 3 of the EIA Regulations. Should the developer disagree with the LPA’s screening opinion, then a screening direction can be requested from the Scottish Ministers.
The process of requesting and issuing a screening opinion provides an excellent opportunity to focus on the significant issues relating to a proposal.
Many developers do not pursue screening opinions where they believe that a particular development will require an EIA. Obtaining such an opinion is, however, useful as they set out the LPA’s/Scottish Ministers’ opinions as to why an EIA is required under Schedule 3 of the EIA Regulations.
If an EIA is required, a developer can request a ‘scoping opinion’ from the LPA under Schedule 4 of the EIA Regulations. This request seeks the LPA’s opinion as to the information to be supplied within the proposed Environmental Statement (a scoping opinion).
This request should include:
LPAs should adopt a scoping opinion within five weeks of receiving such a request, unless a longer period has been agreed in writing with the person making the request.
Following agreement as to the intended scope of an Environmental Statement, developers can finalise the scope of the information required to undertake any necessary EIA. Such information frequently relates to an assessment of the project’s potential impacts on landscape, visual, ornithological, ecological, and noise as well as impacts on local transport infrastructure, particularly during construction in the case of wind farms, and in the transportation of fuel in the case of biomass power stations.
The collation of the raw data required to undertake an EIA should happen in consultation with the relevant statutory consultees. This will make sure that a competent application is submitted without any data gaps that could otherwise delay assessment and determination.
Schedule 4 of the relevant EIA Regulations sets out the information required for inclusion within Environmental Statements. This should include a description of the proposal, a description and assessment of its likely significant effects (rather than all identifiable effects) and a description of any proposed mitigation.
Environmental Statements generally consist of a non-technical summary, a main report and sometimes a separate volume of plans and figures. Some Environmental Statements are also accompanied by a Planning Statement or equivalent document, setting out the relevant national and local planning context within which the proposal in question will be determined.
It can be beneficial to the subsequent validation and determination of an EIA proposal to provide the relevant LPA and consultees with a copy.
Throughout much of the UK, the most significant and controversial renewable energy proposals in the foreseeable future are likely to relate to proposals for wind energy development.
In addition to wind, it is likely that proposals for biomass generation will increase in number as the technology matures and feedstock production increases. Smaller proposals for ground-source heat, domestic solar/photovoltaic panels and domestic wind turbines are also likely to increase in number as they become more widely available and costs come down.
The majority of planning applications for renewable energy developments are dealt with by the relevant LPA. However, responsibility for authorising new electricity generation plants over 50 megawatts and new hydro plants over 1 megawatt, under Section 36 of the Electricity Act 1989, lies with the Scottish Ministers. Decisions are reached, based on an assessment of the project against the relevant development plan and input requested by the Council or Scottish Ministers, from a variety of consultees. Appeals against refused applications are heard by the Scottish Executive Inquiry Reporters Unit.
You can find further information in Scottish Planning Policy 1 – The Planning System and National Planning Policy Guidance 6 – Renewable Energy Developments.
When submitting an application, applicants should provide the appropriate fee and sufficient copies of any supporting information for statutory consultees. In particular, it is important to make sure that site boundaries are correctly identified as some forms of renewable energy development can include works outside the main site, for example highway improvements necessary to allow the delivery of large turbine components. These should all be identified.
A checklist of issues that should be covered in an application can be found via (details of link to follow).
After receiving a valid planning application, the LPA has eight weeks in which to determine the proposal, unless an extension in time is agreed with the applicant. After this period, if no decision has been made or there is no agreement to an extension in the determination period, then the applicant can appeal against non-determination.
Applications accompanied by an EIA must be determined within four months.
Planning committee reports relating to actual, determined renewable energy schemes can be found via (details of link to follow).
The LPA has the power to attach conditions to planning permission. This ability allows it to approve development proposals where it would otherwise be necessary to refuse planning permission. However, it will only impose conditions that, in its opinion, are necessary, relevant to planning, relevant to the development being permitted, precise, enforceable and reasonable in all other respects.
A selection of illustrative planning conditions attached to actual renewable energy projects can be found via (details of link to follow).
Such agreements can, for example, require developers to:
Responsibility for the consenting of offshore wind farms around Scotland lies outside the jurisdiction of LPAs, whose responsibility for determining planning applications does not extend below the low water mark.
The relevant consents for offshore wind farms can be granted under two pieces of legislation:
Associated licences are also required under the Food and Environmental Protection Act 1985 and additional consent may be required under the Coast Protection Act 1949.
Applications made under the Electricity Act and the Transport and Works Act are handled by the Scottish Executive.
The Electricity Act currently applies to offshore wind farms within territorial waters adjacent to Scotland. To bring smaller offshore wind farms and water-driven developments within the jurisdiction of the Electricity Act (and associated EIA Regulations), the Scottish Executive’s powers under the Act were extended on 1 December 2001 by means of a Statutory Instrument (SI 2001/3642) to cover all offshore wind and water-driven developments of above 1 megawatt capacity. The Energy Act 2004 will extend the requirement for this consent to proposals beyond UK territorial waters.
Where applications are submitted under the Electricity Act 1989, further consent is required under the provisions of the Coast Protection Act 1949 for construction on or under the seashore below the level of mean high water springs (MHWS).
The Transport and Works Act provides an alternative way to obtain certain statutory rights necessary for the development of offshore wind farms within UK territorial waters. It also dispenses with the need for Coast Protection Act consents.
In addition to Electricity Act and the Transport and Works Act consents, Food and Environmental Protection Act licences are required under Section 5 of the Food and Environmental Protection Act 1985 for any activities which result in the deposition of any material in the marine environment below the MHWS.
In some cases, additional consents may be required under Section 109 of the Water Resources Act 1991. Where a proposed offshore wind farm includes onshore elements such as control buildings and temporary construction compounds, consents may be required under the Town and Country Planning (Scotland) Act.
You can find a comprehensive set of guidance notes describing the consenting process for offshore wind farms below:
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