A new threshold in onshore hydro planning schemes is set to come into force later this year, but what are the real implications?

Presently, and contrary to the position in England and Wales, the Electricity Act 1989 (Requirement of Consent for Hydro-electric Generating Stations) (Scotland) Order 1990 states that applications for hydro schemes generating more than 1MW but less than 50MW require to be consulted upon at local level and then approved by the Scottish Ministers.  The background to this threshold was seemingly to allow the Fisheries Commission to input into applications (this role now being taken over by the Scottish Environment Protection Agency (SEPA) in relation to all applications).  There is therefore no real rationale for the threshold to remain in force differentiating Scotland from the ambit originally envisaged by Section 36 of the Electricity Act 1989.  The application process in England and Wales for such schemes is a much simpler process:  applications are reviewed and approved by local planning authorities (LPAs).  The affect of this much shorter and simpler route is that applications are dealt with much quicker, a second level of administration is removed, cost is reduced, decision making is less far removed and there is more opportunity for local knowledge to be applied.

Following a consultation last year, a decision was taken in February to revoke the 1990 Order and increase the threshold to 50MW from June 2011 aligning Scotland and section 36 of the 1989 Act with the approach taken in England and Wales and bringing the threshold in line with that currently used for wind farms.  An Order dealing with this has very recently been placed before Parliament.

So besides the need for new guidance in the run up to the cut off, what issues are likely to arise in practice?

Firstly, there is a slight risk of inconsistency in decisions across LPAs owing to the new potential for varied decisions up to 50MW.  Under the current system, Scottish Ministers are the ultimate decisive source which, by nature, limits inconsistency.  It would therefore be interesting to find out how LPAs will ensure a uniform approach and whether precedents will be recognised.  Consistency not only relates to the equal treatment of decisions, but also turnaround times: it is inevitable that some boards will be busier than others.

Secondly, the new system raises issues in relation to costs.  It is envisaged that application costs will now be harmonised with planning costs under The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004 which calculates fees on a proportionate basis in terms of size/area of development.  Generating schemes of under 10MW may therefore be disadvantaged as, although small in generating power, they can nevertheless span a significant area of land.  Given the current fee for such applications is £5,000, the new fee could be significantly higher.

Thirdly, there is a lack of certainty around the appeals process.  Will this be determined at local level or be referred up to the Scottish Ministers?  Will the appeal mechanism depend on the size of the application?  These questions raise a number of further points and we await hearing from the Government with their proposals.

All in all, the harmonisation of section 36 in the UK appears, on the face of it, a much welcomed change.  However, as with all legislative amendments, wider implications usually expected in the long run often get overlooked and it is important, at this early stage, that interested parties keep abreast of developments and opportunities to get further involved.  It will be interesting to see how the changes will filter through in practice.

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