Renewable Energy in Scotland - An Overview

Introduction

Generating energy from renewable sources continues to rise in profile and importance for a number of reasons:

• Its promotion by the UK and Scottish Governments as a means of meeting energy targets and international obligations, particularly the Renewables Obligation;
• Its role as a source of energy that does not contribute significantly towards the probable causes of climate change;
• The high price of fossil fuels;
• The security of supply it represents relative to oil, gas and coal; and
• The policy trend towards discouraging reliance on fossil fuels without increasing the contribution of nuclear energy towards meeting our energy demands.

These factors all point to an increased role for renewable energy developments in meeting our energy requirements and a consequent increase in the demands such developments place on local authority and Scottish Government planning resources. The following summary of planning matters relating to renewable energy developments shows the importance of taking legal advice at an early stage, whether you are a developer, objector, regulator or third party.

Principal Consents Required For Onshore Wind Energy Developments

Depending upon the generating capacity of the renewable energy development (50 megawatts is the current threshold figure for wind), the following are required to construct/extend and operate a renewable energy development:

• Consent under the Electricity Act 1989 (the "Electricity Act"); and
• Planning permission under the Town & Country Planning (Scotland) Act 1997 (the "Planning Act").

Currently, developments of less than 50 mw only require permission under the Planning Act.

There are two schools of thought on the relationship between the Electricity Act and Planning Act for developments generating more than 50 mw. The first considers Consent under the Electricity Act to be the principal authorisation and planning permission as a 'deemed' adjunct of the former. This is because the relevant provision within the Planning Act states that when granting consent under the Electricity Act, the Scottish Ministers can direct that planning permission for the development should "be deemed to be granted." The second, generally adopted by reporters in the Scottish Government's Directorate for Planning and Environmental Appeals, treats the Electricity Act Consent and the Planning Permission separately and the relevant provisions of the Planning Act support this view. This is because the wording of the Planning Act is such that making a Direction for deemed Planning Permission does not necessarily alter the requirement for the Scottish Ministers to give the development plan priority when "making any determination under the planning Acts."

Offshore Renewable Energy – The Marine (Scotland) Act 2010

The Marine (Scotland) Act 2010 introduced a new, more simplified marine planning and licensing system. The Act establishes a framework which will help balance competing demands on Scotland's seas and aims to manage competition for marine space and deal with potential future conflicts. It introduces a duty to protect and enhance the marine environment and includes measures to encourage economic investment and growth in areas such as marine renewables.

The Act:

Marine Planning

• Reinforces sustainable development by introducing a national marine plan covering all of Scotland's waters from the high spring tide water mark to the 200 nautical mile limit.
• Enhances local accountability by providing Scottish Ministers with the power to create Scottish Marine Regions and powers to delegate marine planning to the Planning Partnerships of those regions.
• Ensures that all authorisation decisions made for the marine environment are taken in line with the marine plan.

Marine Licensing

• Introduces a simpler licensing system, minimising the number of licences required for development in the marine environment to cut bureaucracy and encourage economic investment.

Marine Conservation

• Provides measures to improve marine nature and historic conservation with new powers to protect and manage areas of importance for marine wildlife, habitat and historic monuments.

Planning Policy Renewable Energy – SPP

Scottish Planning Policy 2010 (SPP) outlines the Scottish Government's policy on Renewable Energy and provides the policies and advice by which its targets will be met. The SPP originally set these targets at 50% of demand for Scottish electricity to be supplied from renewable sources by 2020 with an interim target of 31% by 2011. Assisted by the rapid expansion in wind power, Scotland is on course to exceed its targets; and in September 2010 the Scottish Government confirmed that Scotland's renewable electricity target for the next decade would be raised from 50 per cent to 80 per cent. The increase in renewable energy targets is supported by the SPP which states that the targets "should not be regarded as a cap" and by new calculations carried out by the Scottish Government that suggest that significantly higher levels of renewables could be deployed by 2020 with little change to the current policy, planning or regulation framework in Scotland. This is also in line with EU Directive 2009/28/EC on the promotion of the use of energy from renewable sources. While hydroelectric and onshore wind power are currently the main sources of renewable energy supplies the SPP recognises that these will increasingly become a part of a wider mix of renewables as other technologies become more commercially viable.

SPP affirms that planning authorities should support the development of a diverse range of renewable energy technologies, guide development to appropriate locations and ensure that the factors taken into account in decision making on all renewable energy generation development are clearly stated in the development plan or supplementary planning guidance. It encourages planning authorities to support the development of wind farms in locations where the technology can operate efficiently and encourages planning authorities to update their development plan policies in such a way as to encourage renewable energy developments and identify areas capable of supporting wind farms of more than 20 mw, subject to relevant environmental and other considerations. Of course, the promotion of renewable energy developments has to be reconciled with the need to protect and enhance the natural and historic environments of Scotland.

Issues Arising From Renewable Energy Developments

Other areas and issues that renewable energy developments will affect or give rise to, include:

• Effects upon aviation (civil and military) and radar;
• Noise emissions from the mechanics within turbines and, separately, the turbines as they pass through the air. Planning Advice Note (PAN) 45 as updated in February 2011 refers to steps that can be taken to measure and control noise from wind farms;
• Effects upon ecology, particularly birdlife. Renewable energy developments also have to take habitats legislation and designations into account;
• Effects upon hydrogeology, particularly where turbines are located upon, and later removed from, sensitive environments. The construction, on-going management and decommissioning of turbines may also have an impact upon the immediate environment;
• Effects upon landscape. Frequently a contentious aspect of wind energy developments and often an issue which can determine whether someone is "for" or "against" such developments in general. PAN 45 contains guidance on this issue;
• Cumulative impacts. Put simply, this involves taking account of other, completed developments in the vicinity, those which have been granted permission and those that are at the application stage but as yet undetermined. This is now considered to be a material consideration when determining planning applications and is a requirement of the Environmental Impact Assessment Regulations. Scottish Natural Heritage recommends a 60km area around a proposed site within which account is taken of all permitted, completed and yet-to-be-determined developments. A 30 km radius is then drawn around each of those, thereby showing overlapping zones of possible impact;
• Effects on cultural heritage. This may involve, for example, scheduled ancient monuments and guidance is to be found within the SPP, the Scottish Historic Environment Policy and PAN 45. Public perception and "valency." Public perception of the landscape and the visual amenity impacts of wind farms has emerged as an important factor in the public's acceptance or otherwise of such developments. This has led to development of an approach, sometimes called "valency" whereby the effect of a wind farm upon the landscape is recorded as "impact neutral." This may be at variance with the Environmental Impact Assessment Regulations 1999, which require assessment of the positive and negative impacts of a development such that the need for mitigation can be identified and appropriate measures can be applied.

Special Planning Conditions Applicable To Onshore Wind Farms

Planning conditions frequently applied to wind farm permissions include:

• Limiting the duration of the development, often to 25 years, after which it must be appropriately decommissioned;
• Appointing an independent ecological clerk of works prior to commencement of development to safeguard ecological interests;
• Allowing variation of the location of turbines from the sites shown on approved application plans but only within certain narrow parameters;
• Supplying the Ministry of Defense with the above-ground height of the development's tallest structure and the longitudinal and latitudinal positions of all structures.

Other Forms Of Renewable Energy

Of course, Scottish Government targets for the generation of energy from renewable sources include technologies reliant on other resources.

Onshore

Current technologies include: microgeneration (householders now have Permitted Development Rights for the installation of microgeneration equipment under the Town and Country Planning (General Permitted Development) (Domestic Microgeneration) (Scotland) Amendment Order 2009/34); small-scale hydro technology; combined heat and power; and biomass plants. Some of these can give rise to planning issues including:

• Waste residue disposal;
• Leachate from stockpiles;
• Traffic impact of vehicles, particularly HGVs, delivering fuel;
• Odour nuisance and control.

Offshore

Technological progress means such developments are increasingly feasible but are still fewer in number and smaller in scale than onshore developments. However, the offshore wind industry has seen major growth over the past year in Europe with the number of turbines increasing by more than a half. It seems likely that the industry will continue to develop with significant investment going into the sector. Offshore developments which capture wave energy, like the Oyster at the European Marine Energy Centre at Stromness, Orkney, have also seen encouraging growth and investment in the past year. The continued progress in offshore renewable energy technologies in Scotland can be expected to produce an increasing variety of planning and environmental issues as the technologies mature and schemes come forward

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.