Economy, Energy and Tourism Committee

Meeting date: Wednesday, November 27, 2013

Official Report 261KB pdf

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Subordinate Legislation

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Electricity Generating Stations (Applications for Variation of Consent) (Scotland) Regulations 2013 (SSI 2013/304)

Item 2 is consideration of a negative instrument. Members will recall that we briefly discussed the regulations at last week’s meeting, when we agreed that we would ask the Scottish Government for further information about the guidance that will be issued after the regulations come into force. We have had a reply from Fergus Ewing, which has been circulated to members. The draft guidance note is attached. Do members want to make any comments or observations?

I am pleased that the Government was able to provide the draft guidance on the regulations, but I still have concerns. In principle, the ability to vary a consent under section 36 of the Electricity Act 1989 is fine, but the regulations in no way expressly limit the size or significance of variations. It is important to have safeguards against consents by the back door.

The draft guidance makes it clear that any variations are to be for changes that could not be considered to make a development fundamentally different, but that is just guidance. In England and Wales, the safeguard is expressly in the regulations—RSPB Scotland’s briefing makes that point.

I do not want to press the matter to a vote, which I might well lose, but I ask the convener whether the committee can write again to the Government to express thanks for sharing the draft guidance and to highlight the importance of limiting any variation to minor changes, given that the Scottish regulations do not do that expressly.

Paragraph 14 of the draft guidance note that we have been given says:

“In principle, there is nothing to stop the section 36 variation process being used to facilitate changes which would involve development outside the ‘red line’ boundary indicated in the existing consent.”

That ties in with what Alison Johnstone said. It is a bit concerning that the process would allow such an extension without requiring a further planning process.

Yes—without a fresh application.

I want to respond to the point that Margaret McDougall has just made. It is a good point, but the red-line boundary in a planning application is an arbitrary boundary and we could fit the map of Scotland inside it if we really wanted to. That is a technical point and I think that people are tilting at windmills and looking for problems that are not there. Planning authorities will be involved in the process and they will certainly blow the whistle if they think that the regulations require a fresh application. Alison Johnstone will know that Scotland is stuffed full of people who will point the finger and shout quite loudly if the regulations are breached.

There is a danger in tilting at windmills. We ought to consider the background to this, which is that the Office of Gas and Electricity Markets has warned that we are now down to 2 per cent reserve generation capacity, which is way below the accepted safe level of 30 per cent, and there is a very real danger of the lights going out. To place further obstacles in the way of what might be quite minor alterations to a generation scheme on the basis of tilting at windmills would therefore be unreasonable.

I was not intending to place obstacles in the way of any minor alteration. I just want an assurance that any alterations that are going to be discussed by this method are minor, if that makes sense.

I am comfortable with writing to the Government. I know that it has been suggested that we should not make this into a big issue, but we are not. We are simply proposing to write to the Government to draw its attention to it. It is a minor issue and the letter can reflect that. People should not automatically be defensive.

The regulations are a negative instrument and any member can, if they want to, lodge a motion to annul them. No one has done that and I do not think that anyone is suggesting that we should annul the regulations, so we are agreed about the substantive point. Alison Johnstone’s suggestion is reasonable, so are we agreed that the committee should write to ministers to make the point that members have raised the issue and we hope that the Government will bear it in mind?

Members indicated agreement.

We will proceed on that basis.

09:37 Meeting continued in private until 10:52.