Chamber and committees

Dr Rachel Connor submission of 27 August 2021

PE1864/XXXX

In support of this Petition, I have discovered that for planning applications under section 36 of the Electricity Act 1989, which is applicable to any windfarm or electricity generation facility over 50 MW (including solar parks, and flammable battery storage units), there is no requirement for neighbour notification. Yet these are the largest form of built power generation developments on Scottish soil!

The relevant legislative framework for such applications is the—

• Electricity Act 1989,

• Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and

• section 57 of the Town and Country Planning (Scotland) Act (TCPSA) 1997.

The Town and Country Planning (Development Management Procedure) Regulations 2013/155 for neighbour notification does not apply to an application for deemed planning permission, under s.57 of the TCPSA 1997. Deemed Permission is granted when there is a s.36 consent – which is granted by Scottish Ministers and which can exclude any local opinion and Decision making by the local planning authority. This effectively excludes any involvement in the planning process by people local to a development.

There are requirements to place notices for a s.36 application in the local press and the Edinburgh Gazette. There are requirements to serve copies of the application and the Environmental Impact Assessment Report (EIAR) on statutory consultation bodies and on the Local Planning Authority.

Copies of the application documents are available on the Scottish Government’s Energy Consents Unit (ECU) and should be available on Local Authority websites, but there is no obligation to serve copies on neighbours. That means that it is entirely possible that an owner of land may not know that a s.36 application is planned on neighbouring land. The absence of a formal requirement to notify neighbours seems highly anomalous.

Unless the Scottish Ministers specifically make a direction under the applicable legislation, there is no requirement in any of the above legislation to serve formal notice of a s.36 application upon neighbouring landowners or other persons.

In most cases, there is no such direction by Scottish Ministers, although common sense would suggest that such notification would be essential in the interests of good neighbour relations. Generally, experience suggests that it just doesn't happen.

It is a basic rule of Planning Law that you tell your neighbours what you are doing when you want to initiate development of any kind.

Individuals and poorly resourced small rural communities are often disadvantaged, because for the largest onshore windfarm development, likely to have the most overwhelming adverse impacts on the environment, namely those made under s.36 of the Electricity Act, there is no requirement to tell your neighbours what you are planning.

That is true for applications which will be noisy, produce overwhelming visual impact, shadow flicker, disrupt water supplies, devalue neighbouring properties and in the case of Battery Energy Storage Systems (BESS), are known to be both noisy and potentially explosive- potentially endangering neighbours.

Failure to inform neighbours to a proposed development means that an application can be scoped, assessed and collated into an Environmental Impact Assessment and a Decision made, before anyone local is told.

Knowledge of a proposed s.36 development currently depends on the willingness by a developer to be transparent and engage with the local community, or on the diligence of local people in regularly scrutinising local or national papers – which they may not necessarily receive.

Developers sometimes provide information on their websites – which again assumes good internet access and knowledge of the application in the first place. My experience is that even Community Councils are not routinely notified of scoping for s.36 applications and they will not necessarily have the contact details for the neighbours to a proposed development site.

For the public to engage effectively in the planning process, knowledge is everything. If you do not know what is going on, you can neither offer credible support, nor properly research opposition and the public may miss deadlines for being able to submit any comment to such an application.

If they have the technical knowledge and internet connection (which is often lacking in rural Scotland) the public may well have to interrogate the websites of Government bodies such as the ECU for information, which itself is difficult to navigate even if the person knows not only the name but the planning application number of the proposed windfarm.

Why would it be so difficult to require would-be developers to equip the affected public with the knowledge they need to understand forthcoming development plans by requiring that applications and Environmental Impact Assessments are compulsorily intimated to all neighbours?