Deemed planning permission under the Town and Country Planning (Scotland) Act 1997

Section 57(2) of the Town and Country Planning (Scotland) Act 1997 (TCPSA) permits the Scottish Ministers, on granting a consent under section 36 of the Electricity Act 1989 in respect of an operation that constitutes “development”, to direct that planning permission for that development and any ancillary development be deemed to be granted.

It was hoped that section 57(2) of the TCPSA would facilitate a one stop shop for offshore renewable energy consenting in Scotland to avoid the need for a separate planning application to be made for the onshore works associated with proposed offshore generating stations, in addition to the section 36 application which is submitted to the Scottish Ministers.

In their Draft Licensing and Consents Manual Covering Marine Renewables and Offshore Wind Energy Development published in October 2012, Marine Scotland state that section 57 of the TCPSA “allows the Scottish Ministers to direct that planning permission be deemed to be granted for any development that is ancillary to onshore development covered by s36 consent under the 1989 Act. The legislation does not, however, extend to offshore developments”. The rationale for this is that section 26 of the TCPSA defines “development” as “the carrying out of building, engineering, mining or other operations in, on, over or under land” and this was determined by Scottish Government lawyers not to apply to operations carried out offshore. It therefore follows that section 57(2) will not apply where a section 36 consent relates to an operation (i.e. the construction of a generating station) carried out offshore as this will not fall within the definition of “development”.

Time for change

In the Draft Licensing and Consents Manual, Marine Scotland state that “work is being undertaken to look at amending primary legislation… to allow Scottish Ministers the authority to grant deemed planning permission for onshore ancillary works related to offshore/marine energy development”. There has been a determination on Marine Scotland’s part to resolve this but it has taken some time to find the required fix.

Finally, the Growth and Infrastructure Bill, which has just been through its third reading in the House of Lords, emerged as an appropriate vehicle in which to amend section 57(2) of the TCPSA. However, deemed planning permission is a devolved matter in Scotland and as such the UK Parliament would not normally legislate with regard to such matters without the consent of the Scottish Parliament. The Scottish Parliament therefore agreed to a legislative consent motion allowing the provisions of the Bill relating to devolved matters to be considered by the UK Parliament.

The proposed changes in the Growth and Infrastructure Bill amend the wording of section 57(2) of the TCPSA so that the section 36 consent being granted would not require to be in respect of an operation that constitutes “development”. This means that a direction that planning permission be deemed to be granted could be made by the Scottish Ministers in relation to the onshore works associated with an offshore generating station for which a section 36 consent has been granted.

There is no reason for this change to impact on offshore renewable energy projects for which section 36 applications and separate planning applications have already been or are in the process of being submitted however, it is hoped that the changes proposed to section 57(2) of the TCPSA in the Growth and Infrastructure Bill will provide a more streamlined process for the next generation of developments in the sector.