Subordinate Legislation
Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2008 (SSI 2008/246)
Item 6 is subordinate legislation. Colin Imrie and Debbie McCall from the Scottish Government are here to tell us about this negative Scottish statutory instrument and to answer any questions that committee members may have.
Colin Imrie (Scottish Government Enterprise, Energy and Tourism Directorate):
Thank you for this opportunity to explain the regulations. I will start by telling members where my colleague and I are situated in the hierarchy. Debbie McCall and I work in the same team as David Wilson and Jane Morgan, dealing with energy consents, which is today's subject. I also work on European energy policy and lead the European energy project team. I am also on the renewable energy framework team, so I deal with a range of issues. Debbie McCall leads the team that deals, day to day, with the consents process and environmental impact assessment procedures in particular. These regulations seek to implement a directive that will amend those procedures.
I will ask Debbie McCall to give members the details, while I work the computer to show the slides.
Debbie McCall (Scottish Government Enterprise, Energy and Tourism Directorate):
Because I cannot do two things at once.
Thank you for inviting us here today. We will talk about the legislative framework that supports electricity generation, including renewable energy generation. In particular, we will talk about amendments to the electricity works regulations. As Colin Imrie said, we both work in the energy consents unit—he is the head of the unit and I am the general manager.
Electricity generation in Scotland is legislated for under two main regimes. The Electricity Act 1989 is concerned with large-scale electricity generation, by which I mean energy-generating stations above 50MW, or 1MW for water-driven generation such as hydro. The Town and Country Planning (Scotland) Act 1997 permits smaller developments onshore, below the generation thresholds of the Electricity Act 1989.
The Electricity Act 1989 is the primary legislation for giving consent to large-scale electricity-generating developments. The act is reserved, but the consenting of electricity generation has been administratively devolved to the Scottish ministers. The act details the capacity requirements, the planning authorities' role in advising the Scottish ministers—on any need for a public inquiry, for example—and the powers for deemed planning permission. Schedule 9 to the act places a duty on ministers to protect the flora, fauna and natural beauty of Scotland.
The Town and Country Planning (Scotland) Act 1997 relates generally to smaller-scale developments for generating stations of below 50 MW or 1MW, which are determined by the planning authorities.
In addition to the primary legislation we have a number of examples of secondary legislation. The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 detail the need for environmental information and statements for specific projects. They also detail the requirements for each stage of the EIA process. In addition, there are the Electricity (Applications for Consent) Regulations 1990, which detail the processing of applications, the publicity requirements, the timescales for representations from the public, and fees.
We are now seeking to amend the first of those pieces of secondary legislation, and I will explain that in a bit more detail later.
The Electricity Act 1989 places on ministers a duty to protect the environment when considering an application. Any determinations must also comply with the expectations of EU legislation; the Scottish ministers are bound to respect the commitments under the EU habitats directive and the EU birds directive.
The water framework directive, as transposed under the Water Environment (Controlled Activities) (Scotland) Regulations 2005, ensures the protection of the water environment in Scotland. Most developments, and definitely hydro developments, will require what is called a CAR licence—under the controlled activities regulations. We have an agreed process with the Scottish Environment Protection Agency, which is the licensing authority under CAR, to ensure that energy consenting and CAR regimes work in parallel where possible.
In considering all those factors, the Scottish ministers are committed to ensuring that good developments flow through the planning system quickly. A good development is one that has addressed all environmental and planning impacts prior to the submission of the application. Later, I will talk briefly about how we intend to realise that quickness.
The new electricity works regulations that we are discussing today are a transposition of the European Union directive on public participation, which amends the directive on the assessment of environmental effects. The regulations seek to increase the public's right of engagement, and the level of engagement, in energy consent applications.
In line with the public participation directive, we are introducing clear guidance on the availability of information to the public. That relates not only to making available to the public more information that supports applications, but to increasing the public's knowledge of the energy consents process, so that members of the public can easily understand the system and their role in it.
A consultation covering several EIA regulations was carried out in May 2005, the results of which have helped to form the amendment regulations. We have prepared a guidance note on the changes that the new legislation will introduce. So what is new? There will be greater access to key information relating to applications; more opportunity for the public and groups to make representations to the Scottish ministers; better notification of determinations; and guidance on reviews.
A new stage in the process will allow the public to make further representations on applications to the Scottish ministers. It will also provide greater public scrutiny of substantive information that is supplied by the applicant or the statutory consultees, such as SEPA and Scottish Natural Heritage. The definition of statutory consultees will now include other statutory bodies with environmental interests, such as English Heritage, which might be involved where there are cross-border implications.
The new public notices will better describe the representation procedure, the public inquiry procedures and possible decisions and give judicial review guidance. The key point is that the planning authority will have to place on the planning register all substantive information from developers or statutory consultees to allow the public to see what the key parties' views are on applications, before they are determined.
All new applications that are received will be subject to the amended regulations. Previously, substantive information that was supplied by the developer was always part of the consultation process. Now, additional information that is supplied by statutory consultees will be made available to the public through the planning register prior to determination. The public will have an additional opportunity to comment once they have read the statutory consultees' advice. In working terms, that means that when a first statutory response is received, the Scottish ministers will ask for it to be placed on the planning register. The developer will place an additional public notice telling the public of the new information and inviting them to comment further to the Scottish ministers. Basically, that is a new opportunity for the public to comment, informed by SNH's and SEPA's views. All statutory consultees' responses will be placed on the planning register, but that will be advertised only in the first instance. There will also be greater notification of outcomes. The Scottish ministers will ask developers to place a further public notice when a determination is made. The notice will give greater detail of the determination and signpost the public to the full consideration of the determination.
We expect the changes to support the energy consents process. We do not expect the process to be lengthened at all, as the additional consultation process will fall within the four-month statutory consultation time that local authorities have to come back to ministers on an application. Obviously, a small cost burden is placed on developers as a result of the need for new public notices, but the burden is minimal and we believe that the changes will enhance transparency and confidence in the planning system. We have issued guidance on the amended regulations to developers, planning authorities and statutory consultees.
I said that I would speak about the improvements that we are making that we hope will deliver quicker determination times for good projects. I will skip through them quickly. The second national planning framework, which is to be published in 2008, highlights grid reinforcements as national developments. Following the publication of Scottish planning policy 6, planning authorities are preparing locational guidance, and consultations and seminars are being held to help local authorities do that. The second annex to planning advice note 45, on locational guidance, should be available in early 2009.
Aviation and radar are of particular concern in relation to wind farms. The Scottish and UK Governments, airport authorities and NATS are working on a UK initiative to bring new solutions and a case-by-case approach. Working with key partners on regional initiatives in the southern Scotland area, we are looking for local solutions for Scotland. We are keen to front-load the application process by encouraging developers to use the Scottish Government's scoping services. There is a strong recommendation to developers to carry out pre-application consultation so that, where possible, they build community support for applications. We have an applications checklist, the use of which is compulsory—applications are reviewed against the checklist before they are formally accepted.
Our ambition is to determine new applications within nine months when there is no need for a public inquiry. Eight applications have gone into the system since we have committed to the timetable. We will use seven principles to review the progress of the first six applications later in 2008.
To ensure that key players can work effectively to meet the deadlines, we are reviewing the fees to support the process and focusing public local inquiries on key issues—rather than allowing them to be free ranging, which could take more time.
We are working to encourage local authorities to share our 50 per cent national outcome. The concordat with local authorities offers a new opportunity to refresh and reinvigorate the co-working of the two bodies in considering renewable energy developments. The Scottish ministers are keen that both regimes are supportive of each other and will offer planning authorities greater guidance on effective delivery, consideration of applications and community engagement. As David Wilson mentioned, ministers recently met planning department chief executives.
We are undertaking a number of other developments, including a Scotland-wide database on renewable developments in Scotland; a simplified approach to consent for offshore development; guidance on recurrent applications; and the consultation on the Scottish Marine Organisation. That is a summary of the things that are going on in association with the amended regulations.
You said that the additional registration and public notice—the new consultation period—would have no impact on the length of consideration, because it would fit within the window of a council's response time. Can you confirm that there will be zero impact on the time of consideration? Are there any other aspects of the regulations that will have an impact on the consideration time for applications at consent level?
Your assumption is correct: we expect the amendments not to mean that it takes any longer. A developer can give any statutory consultee longer for their consideration, but we envisage one of the statutory consultees coming forward within the first four months of that additional process. The consultation period happens only in the first instance of someone coming forward. For example, if Scottish Natural Heritage responded within its timeframe, the consultation period would start, which would still be within the four-month time period. However, we cannot prevent the developer from allowing all statutory consultees to extend their time.
You mentioned that, in association with the regulations, ministers have put in place a nine-month target for applications where there is no need for a public inquiry, and that you are monitoring those that have come in since then. Does that mean that the applications that were outstanding before that introduction date are likely to lose their place in the queue for consideration?
I will answer that one. The minister announced last December that we are working towards the nine-month target. It is based on taking all the various steps in the process together, adding them up and saying that if we can manage everything in that timescale, we will seek to do so. We do not expect that every application will meet that target, because one of the key principles that will allow us to meet it is that the application is a good one on which the local community has been properly consulted and the issues have been dealt with.
Six applications came in at the start of the year. We are monitoring their progress carefully. One has to remember that they were prepared before the timescale was introduced. As a consequence, we have to deal—and we will deal—with the fact that they are perhaps not perfect.
Previous applications have been given as much importance as current applications, to ensure that any remaining issues are dealt with expeditiously. All 18 consents during the past year relate to previous applications.
In practice, there has been a twin-track process of seeking to resolve issues with previous applications, including negative decisions in some cases, while introducing new procedures for new cases with the hope that they will proceed more expeditiously.
How many outstanding applications were submitted before December last year? Will the regulations apply to them?
The regulations will apply only to new applications.
And how many do you have outstanding from before the targets were set?
I would need to check the exact figure, but there are approximately 29 or 30.
A certain proportion of those applications have been suspended with the developers' agreement because there are outstanding issues that require time to resolve. If they are suspended, the clock stops ticking.
Approximately 15 are suspended, and four are at public inquiry.
I have a quick question on the Executive note. One factor in the regulatory impact assessment is the effect that the regulations may have on business. The note says that
"some procedural and financial requirements will also fall to developers."
What might those financial requirements be?
The financial requirements involve the costs relating to the additional public notices. We do not expect any other related costs to be placed on business. We think that, in the scheme of things, that is minimal.
When you investigate a scheme, do you take into account the capacity of the power lines in the area to take additional electricity from a wind farm? Would that be a factor in establishing whether an application was granted, or whether extensive new lines were required?
Grid connection is a material consideration.
There are no further questions, and no motions to annul have been lodged. The Subordinate Legislation Committee determined that it did not need to draw the instrument to the attention of the Parliament. No member wants to comment. Does the committee agree that it has no recommendation to make on the regulations?
Members indicated agreement.
I thank the officials for their useful information.