During October/November 2024, the UK and Scottish Governments held a consultation on proposals to reform the consenting process under the Electricity Act 1989 for electricity infrastructure in Scotland. The impetus behind the proposed reforms is to accelerate the transition to clean power and achieving net zero.
The consultation paper notes that the "inefficient and outdated features" of the application process under the Electricity Act 1989 mean it can take up to four years to consent large-scale onshore electricity infrastructure projects. The consultation proposes various reforms to the consenting process, but stops short of proposing any changes to how applications are dealt with by Scottish Ministers.
Proposed reforms - examination of applications
The consultation paper sets out a number of proposed changes to the consenting process. Of particular importance when looking at improving efficiency and speed, the paper included proposals for a significant change to the examination of opposed applications.
Under the 1989 Act, where the relevant local authority submits an objection within the prescribed period for representations, which is not withdrawn, Scottish Ministers must hold a public inquiry. They may also choose to hold a public inquiry if there are any other objections, and the Scottish Ministers consider a public inquiry should be held.
The consultation proposes that Reporters appointed to examine opposed applications be given discretion to decide what further procedure is required for their examination of the application. This would make opposed applications similar to planning appeals, where the Reporter may decide no further procedure is required or, if further procedure is needed, this can be by way of site visit, further written submissions, hearing sessions, inquiry sessions, or a combination. The Reporter will also provide parties with a target timescale for any procedure up to the issue of their recommendation report to Scottish Ministers.
The intention of this proposal is to ensure that, where the relevant planning authority objects, applications are examined "in an efficient, proportionate and constructive manner, with the approach tailored to the case being consented. The intention is that applications will continue to be subject to an appropriate level of scrutiny, but without unnecessarily adversarial or protracted processes."
The removal of mandatory inquiries, and increased flexibility in terms of procedure, may seem primarily to appeal to developers. However, local inquiries can be costly for local authorities as well, as demonstrated by comments made when Moray Council's Planning Committee recently agreed to object to a S.36 application by Vattenfall that the inquiry process is "very burdensome" and "unpleasant".
Determination of applications
Under the 1989 Act, the Reporter who carried out the examination will issue a recommendation report to Scottish Ministers, who make the final decision, and there is no target timescale for Scottish Ministers to issue their decisions.
Many applicants' concerns with S.36 applications relate to the length of time the examination process takes. The consultation paper states that the full inquiry process, from appointment of a Reporter to submission of their recommendation report to Scottish Ministers, currently takes an average of 18 months, noting "This is a substantial addition to application timelines and creates significant uncertainty for applicants."
However, the website for the Scottish Government's Planning & Environmental Appeals Division (which administrates the application examination process) shows that there are currently five opposed S.36 applications for onshore wind projects where the Reporter's recommendation report has been issued. These applications have been with Scottish Ministers for up to five months so far. Five opposed S.37 applications have been with Scottish Ministers for ten months awaiting a decision. Of the four opposed S.36 applications determined by Scottish Ministers in 2024, the applications were with Scottish Ministers for periods ranging from six to eight months, and one S.37 application was with Scottish Ministers for nine months. Two S.36 applications for wind and solar projects have been determined so far in 2025, which were with Scottish Ministers for four and ten months.
Even where there is no legal requirement to hold an inquiry, S.36 applications for onshore wind can take a significant length of time to determine. Six such applications were determined in 2024, with the time taken to determine the applications ranging from 13 months to 32 months (five of the applications taking more than two years).
S.36 applications for other types of generating stations typically take less time than S.36 applications for onshore wind. However, there can still be a substantial period of time between submission and determination, despite none involving inquiry processes in recent years. The time taken to determine two S.36 applications relating to the expansion and upgrade of the Cruachan pumped storage hydro power station was 11 and 14 months. For solar projects, two recent determinations took 8 and 11 months. Fourteen battery energy storage system (BESS) S.36 applications were determined in 2024, with determination timescales ranging from 7 months to 24 months (one outlier took three years and six months).
It is clear that the time period that applications are with Scottish Ministers can also be a "substantial addition to application timelines" and cause "significant uncertainty for applicants". However, the consultation paper does not include any proposed reforms to the decision-making process once an application is with Scottish Ministers for determination.
Emerging proposals
In contrast, on 18 December 2024, the Scottish Government issued a Progress Report on compulsory purchase reform. Emerging proposals listed in the Progress Report include enabling Scottish Ministers to delegate decisions on opposed CPOs to Reporters, and publishing target timescales for issuing decisions to confirm CPOs. The aim of these proposals would be to streamline the process and provide greater clarity and certainty.
When finalising reforms to the consenting process under the 1989 Act, the UK Government's Department for Energy Security and Net Zero, and the Scottish Government's Energy team may consider whether some of the emerging compulsory purchase reform proposals could also assist in achieving a "more streamlined and effective system" for electricity infrastructure consenting.
The consultation paper suggests Reporters would communicate target timescales for issue of their recommendation report. It would be equally helpful for applicants if Scottish Ministers were to set out target timescales for issuing their decision, for both opposed and unopposed applications, either using a set statutory determination period, or specifying an estimated timescale on a case-by-case basis.
There are a number of proposed changes in the consultation paper which seek to bring the electricity infrastructure consenting process closer into alignment with the Town and Country Planning regime for planning applications, and a set statutory determination period would support that. However, applications for development under the 1989 Act typically involve development of a significant scale, usually with complex issues which require careful consideration. Replicating the four-month statutory determination period for major and EIA application may therefore not be appropriate, and a longer period may be required.
Of course, target timescales are not a surefire solution to the issue of uncertainty. Planning applications to local authorities can also take a substantial amount of time to determine beyond the four-month statutory determination period for major and EIA applications, and 1989 Act applications cannot be appealed for non-determination.
However, any form of target timescale would give applicants some idea of when to expect their applications will be determined, and would enable the efficiency of the process to be assessed against a measurable goal.
The ability to delegate decisions to Reporters would also give Scottish Ministers a tool to assist in reducing determination timescales, significantly minimising application timelines where appropriate.
Conclusion
In the consultation paper, Michael Shanks MP, the UK Minister for Energy, sets out that "The current system is inefficient and unpredictable... it presents a barrier to attracting investment and delivering yet more clean energy..." Gillian Martin MSP, the acting Scottish Cabinet Secretary for Net Zero and Energy, emphasises that it is "...essential that our systems are robust, timely, and proportionate to be truly effective."
Where a public inquiry has been carried out, the time period between the issue of the Reporter's report and determination of the application is a significant cause of uncertainty for applicants. If a public inquiry is not required, the time between submission and determination can still be substantial and, in that case, is the primary cause of uncertainty for applicants.
Including measures to streamline the determination process as part of wider reform of electricity infrastructure consenting would help to meet the Governments' aim of accelerating towards clean power and net zero. The Progress Report from the Scottish Government on compulsory purchase reform shows these types of measures are being considered in the wider planning sphere, and it seems worthwhile to explore these as part of the coming consenting reforms.
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