Planning and Infrastructure Bill: Building up to Big Change in Scotland

The Scottish and UK Governments have published results of their consultation on reforms to the electricity infrastructure consenting system in Scotland, with a dramatic ‘shake-up’ of the current system proposed. While developers will welcome some measures to streamline the process and reduce challenge risk, the reforms will also impose new consultation obligations likely to make pre-application more time-consuming and costly.

Reform of the electricity infrastructure consenting system in Scotland, where it can currently take up to four years to issue a decision in some cases, is essential to achieving the Scottish Government’s net zero targets. To this end, the Government consulted on proposed reforms to the consenting processes under the Electricity Act 1989 in late 2024.

Why does the Electricity Act 1989 need to be reformed?

The Scottish Government determines applications to construct or install electricity infrastructure under the Electricity Act 1989 – both for generating stations over 50MW (and some offshore generating stations over 1MW) and for network projects. The current system is outdated and does not easily accommodate the large electricity infrastructure projects of today. The aim of the proposed reforms is to create a robust, timely and proportionate consenting process which meaningfully involves communities and relevant planning authorities in decision-making. The new consenting process would aim to balance efficiency with community engagement and environmental sensitivity. The changes are to be implemented through the Planning and Infrastructure Bill, introduced on Tuesday 12 March, and associated regulations, with close collaboration between the UK and Scottish governments.

This article dives into the details of the changes proposed in Scotland – while many will not come into detail or force until associated regulations are introduced, there are imminent changes on the horizon that developers should take into account when preparing applications.

1. Pre-application requirements

The Electricity Act 1989 currently lacks pre-application requirements for electricity infrastructure projects in Scotland. Although the Scottish Government encourages voluntary pre-application consultation, this has not been universally adopted, leading to incomplete or poor-quality applications and high numbers of objections by planning authorities and other key stakeholders.

The government response sets out pre-application requirements largely as they were initially proposed, with some adjustments based on feedback. Most notably, timeframes for the various elements of the process are now defined. The expected pre-application requirements will be:

• Duty to notify the Scottish Government and, where appropriate, the Marine Licensing Authority (the Marine Directorate) of the intention to undertake pre-application duties and provide a list of proposed bodies to be consulted.
• Duty to publicise a public notice and send a Preliminary Information Report to the Scottish Government and make it available to the public. This will generally be for a six-week period for onshore applications.
  • The public notice should be a brief description of the proposed development along with the location of the development and information on ways to engage with the preliminary information.
  • The Preliminary Information Report should be a description of the project containing all information reasonably required for local communities and statutory consultees to develop an informed view of the likely effects of the development.
• Duty to consult with relevant planning authorities, the public and the marine licensing authority (for offshore projects), ensuring that more thorough and complete applications are submitted. The consultation process is discussed in point 2 below.
• Pre-application fees will be charged, which will fund a new pre-application service supplied by the Scottish Government.

An application can be declined if the pre-application is inadequate.

2. Consultation

The duty to consult will form a part of the pre-application requirements, with significant implications for applicants. Applicants must conduct a consultation involving relevant planning authorities, community councils, and the marine licensing authority for offshore projects. This consultation should follow a Statement of Community Consultation, which should outline how the public and community councils will be notified, how they can submit comments, and how these comments will be considered in the final application.

The Statement of Community Consultation, along with the Preliminary Information Report, should be sent to the Scottish Government and relevant planning authorities before public consultations for their approval or to receive an indication of required changes. The applicant must hold at least two public consultation events, provide contact details for feedback, and make the documents available for public viewing. A six-week time limit for this process for onshore applicants has been introduced in response to feedback from the consultation.

Applicants will be required to submit a Pre-application Consultation Report with the application, setting out how pre-application consultation has been undertaken in accordance with the requirements, how views have been gathered and considered at each stage, and demonstrating that regard has been given to relevant responses.

3. Application Information Requirements

Nearly 43% of applications submitted for onshore generating stations requiring Environmental Impact Assessments since 2007 have been submitted with substandard or inadequate information. To address this, the Scottish Government has determined following the consultation that it will proceed with its proposal to enable new statutory information requirements to be set out in regulations. The regulations will be supported by guidance to assist applicants. Ensuring that submitted applications are high-quality and complete will help reduce undue delays in the consenting system. 

Potential information requirements include detailed plans of infrastructure locations, statements on pre-application engagement, alternative approaches considered, benefits and needs, and all components requiring consent. The list is not final and further dialogue with stakeholders can be expected.

4. Public Inquiries / New Examination Process

Under the current consenting system, when a relevant planning authority objects to an electricity infrastructure application in Scotland this automatically triggers a public inquiry. Inquiries are often criticised as being expensive, time consuming and intimidating for those involved (particularly for witnesses). In recognition of this, the government has proposed a new procedure to replace this automatic inquiry procedure. The new process will be reporter-led, allowing a reporter to determine the most appropriate method for examining unresolved aspects of the objection. The reporter will have a range of options to gather necessary evidence and will submit a report to Scottish Ministers for the final decision.

Following the consultation, the government intends to proceed with this new examination process. The reporter will notify interested parties of the proposed examination procedure and the matters to be addressed, allowing for representations on the proposal to be made. A pre-examination meeting may be held to hear representations before the reporter decides on the final procedure. To address concerns about potential delays raised by some of the consultees, the government will introduce a power to set time limits for the examination procedure.

The government believes this new process will balance the need for efficiency with the importance of thorough examination and community engagement. Detailed guidance will be published on the reporter's choice of procedures and the steps involved in the examination process.

5. Judicial Review

The Scottish Government has proposed significant changes to the procedure for challenging the consenting decisions of Scottish Ministers regarding onshore electricity infrastructure. Currently, these decisions can be challenged through judicial review, which allows for a three-month period to initiate proceedings. However, the government intends to replace this with a statutory appeal process, aligning it with the existing procedure for offshore consents under section 36D of the Electricity Act 1989. This new process will require appeals to be lodged directly with the Inner House of the Court of Session within six weeks of the decision being made public, rather than the date of the decision itself.

Despite mixed responses from the consultation, with concerns about reduced access to justice and the shorter timescale, the government intends to implement these reforms. The government believes that the six-week timescale, as evidenced by the system in England and Wales, is sufficient for bringing a challenge and will help avoid delays that negatively impact infrastructure development. To ensure a smooth transition, the government will develop and publish detailed guidance on the reformed processes and procedures. The new statutory appeal mechanism will come into force two months following Royal Assent of the legislation, applying to consenting decisions made thereafter.

6. Application Input from Statutory Consultees

Timely input from statutory consultees, such as relevant planning authorities, NatureScot, SEPA, and Historic Environment Scotland, is essential for avoiding delays in the onshore application timeline. The Scottish Government will set statutory time limits for each stage of the application process, with scope for extensions for complex applications.

This reform proposal is focused on onshore applications and, following mixed views expressed during the consultation process, the government intends to implement the proposed statutory time limits. The government will also set out ways to support the statutory consultees in complying with the timelines, such as establishing a forum for statutory consultees to consider the common reasons for and patterns of delay and working together with the consultees to implement agreed solutions; developing a framework for delivering the application process; and providing specialist support to the statutory consultees to manage highly technical matters. At present, there are no specified timeline proposals in the government’s consultation response.

7. Variations of Network Projects

Currently, there is no clear prescribed process to vary network consents under the Electricity Act 1989. Such changes are a common necessity for large-scale infrastructure projects which operate in changing conditions and alongside evolving technology. However, due to the uncertainty caused by lack of process, the Scottish Government prefers not to process variations for network projects. This essentially means that to obtain a ‘variation’ for a network project, applicants must restart the consenting process which takes an average of 28 months (for projects requiring an EIA), with the alternative being continuing their operations without the envisaged improvement.

The proposed reform will give the Scottish Government a clear statutory process for granting variations to network projects, mirroring existing provisions for generation projects (in section 36C of the Electricity Act 1989). The proposal will be taken forward as set out in the consultation. The process will include requirements for public notification and opportunities for relevant planning authorities and other parties to make representations to the Scottish Government on the proposal.

8. Variation of Consents Without an Application

As consents are in place for the operational life of a generating station or network project, as mentioned previously they may require to be varied to ensure they do not become outdated and can adapt to future changes. Currently, when errors are found in consents, the applicant must apply for a section 36 consent variation and go through the full variation process, including payment of a fee – even for minor editorial changes.

The government response confirms that the Scottish Government will have the ability to modify all applications (network and generation, onshore and offshore) going forward to alleviate this burden on applicants and increase efficiency in the process. Following objections to the proposal as set out in the consultation, this power will be limited to variations and will not include the power to suspend or revoke consents. Interested parties will be notified of the proposed variation and given the opportunity to make representations.

9. Fees for necessary wayleaves

The government will proceed with the policy as proposed in the consultation, to enable Scottish Ministers to charge a fee for the processing of necessary wayleaves applications. The charge will be based on the principle of full cost recovery, without making a profit.

In recent years, the Scottish Government has received around 40 applications for necessary wayleaves each year. This is forecasted to increase to over 1000 applications in 2025. The fee would enable the Scottish Government to address the financial and staffing pressures caused by this influx and bring the Scottish system in alignment with England and Wales. The fee will likely entail a fixed application fee, plus a day rate for travel and subsistence costs for the inspector’s work on the application.