Interpreting Section 36 of the Electricity Act 1989: Has Clarity Been Restored?
Published date | 01 January 2015 |
DOI | 10.3366/elr.2015.0256 |
Author | Olivia Woolley |
Date | 01 January 2015 |
Pages | 124-129 |
This article considers three recent decisions by the Court of Session on applications for judicial review concerning awards by the Scottish Government of consents to construct and operate wind farms under section 36 of the Electricity Act 1989 (“the 1989 Act”). The first decision, made in September 2013 by Lady Clark of Calton in the Outer House in
[2013] CSOH 158, 2013 SLT 1173 (henceforth
F Gillies, “The implications of the Sustainable Shetland decision” (2013) Scottish Planning and Environmental Law 132 at 133.
Different views on competency to apply for a section 36 consent have been reached in two subsequent decisions. In February 2014, in
[2014] CSOH 22, 2014 SLT 406 (henceforth
The following sections of this article review the differing positions of Lady Clark and of Lords Doherty and Brodie on the competency issue. The final section concludes that Lord Doherty's rejection of Lady Clark's interpretation of the 1989 Act, and the successful appeal by the Scottish Ministers in
The 1989 Act establishes two regimes for regulating electricity generation. Persons who generate electricity for the purposes of supply are guilty of a criminal offence unless they hold a licence authorising them to do so under section 4. Responsibility for awarding this licence lies with Ofgem, the regulator of gas and electricity markets in the UK. In addition, section 36 requires that a consent must be obtained for the construction and operation of a generating station with a capacity exceeding 50MW onshore or above 1MW offshore. This requirement has been replaced in England and Wales by the development consent process under the Planning Act 2008 and, for offshore wind farms under 100MW, by the licensing regime under the Marine and Coastal Access Act 2009.
Planning Act 2008 s 33(1)(h); Marine and Coastal Access Act 2009 s 12(1).
It remains in force in Scotland with decisions being made by the Scottish Ministers, and it places no restriction on persons who may apply for a consentParagraph 3(1) of schedule 9 of the 1989 Act imposes duties on holders of electricity generation licences and on persons exempt from obtaining them to “have regard” to the desirability of certain matters, including preserving natural beauty and conserving flora and fauna, in formulating proposals for the construction and extension of generating...
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