Scotland: Overhaul of Scottish Energy Consenting Regime

The reforms have been proposed to support the growth of renewables projects in Scotland.  The proposed changes tackle all stages of the existing consenting process under sections 36, 36C and 37 of the Electricity Act 1989, from pre-application requirements to time limits for responses to consultation, new fees and measures aimed at reducing planning authority objections.

The reforms will affect all applications after the new provisions come into force including those already in process.

What are the proposed changes?

DESNZ and the Scottish Government are seeking input from electricity infrastructure developers and all other stakeholders on its proposals to reform the electricity infrastructure consenting system in Scotland.

The reforms are aimed at efficiency and predictability: removing barriers to bringing new energy generating assets onto the grid.

Key proposals include:

• the introduction of pre-application consultation requirements and a new ‘Acceptance Stage’ to enforce those requirements
• increased documentation required at the application submission stage to front load the consenting process
• time limits for responses from statutory consultees
• case-by-case deadlines for applications beyond which no amendment can be made
• removing the automatic trigger for inquiry and instead granting reporters discretion to determine what, if any, further procedure is required where a planning authority objects to the application
• the introduction of a variation procedure for network consents
• uniform 6 week statutory appeal right for all onshore and offshore consenting in Scotland
• fees for processing pre-application consultation services and for processing applications for necessary wayleaves.

Certain aspects of the changes are intended to apply only to onshore consenting where DESNZ and the Scottish Government have identified discrete community and environmental issues that may be less relevant in the context of offshore consenting.

Targeted reforms have also been proposed for transmission network projects. The proposals include a variation procedure that reflects the existing procedure for electricity generation developments, and a multi-stage consenting process to reflect the needs of major linear developments. The ambition is that the reforms could reduce the time taken to consent transmission network projects in Scotland by 2 years.

If the reforms come into force in their current form, the provisions will apply to all applications including those already in the consenting process. However, they will not apply retrospectively. DESNZ and the Scottish Government have advised that, in practice, this would mean an already accepted application would not be subject to pre-application requirements, but it would be subject to the new time limits and restrictions on amendment.

The reforms are expected to be brought into force in 2026.

What else do I need to know about the proposed reforms?

Intervention from the UK Government marks a significant overhaul of the system that the Scottish Government has only been able to tweak via non-statutory guidance and potentially limited legislative amendment.

There is no system for ‘nationally significant’ developments in Scotland like the Development Consent Order (DCO) regime in England and the Developments of National Significance (DNS) (soon to be Infrastructure Consent) system in Wales. It is evident that existing precedents and good practice in the English and Welsh systems have been drawn on to inform the changes proposed. However, DESNZ have stopped short of introducing a whole new regime and intend to amend the Electricity Act 1989 instead in order to optimise the timeline for bringing the reforms into force.

Whilst some of the changes are geared at front loading the process and providing greater certainty around timescales, the reforms may risk creating confusion and delay as all parties try to get to grips with new duties and requirements. It therefore remains to be seen whether the changes will be a help or hindrance as 2030 targets come into sharper focus.

What are the next steps?

Developers and all other stakeholders are encouraged to put forward their experiences and insights into the existing consenting system for onshore and offshore electricity generation and networks in Scotland. If there are challenges that have not been identified in the proposals, DESNZ and the Scottish Government are inviting any further concerns to be raised in response to consultation.

Our specialist energy consenting team is on hand to support and advise you on the consultation which is open now until 29 November 2024.

For more information on the proposed changes, catch up on our webinar: