Guidance on dealing with proposals for the variation of section 36 wind farm consents

Purpose

This guidance advises NatureScot staff on what to consider when consulted on proposals to vary section 36 consents.  These are referred to as “section 36C” proposals.

While this guidance just focuses on wind farm development, it is worth noting that section 36 of the Electricity Act covers all types of electricity generating stations and so encompasses a wider scope than wind farms.

Although there is some read across to the marine situation, this guidance is primarily orientated towards onshore wind section 36C applications.  For offshore section 36C applications, therefore, please seek advice from our Sustainable Coasts and Seas Team - email [email protected]

Introduction

The section 36C application process allows the possible authorisation for a generating station to be constructed, extended or operated in a way that would not be consistent with the existing consent.  While not intended to give rise to what would be a fundamentally or substantially different project, the process may be used, for example, to alter turbine dimensions and positions, or to extend the duration of operation.  It is unlikely that the replacement of an existing wind farm for repowering will be considered under section 36C procedures.

The Scottish Government produced guidance on section 36C applications in May 2019.  It set out principles for applicants wishing to make variations to their section 36 consents.  Key points that we should be aware of in dealing with consultations are:

• Variation applications will normally only require an EIA if the change introduces a new significant effect, or if it intensifies an existing significant effect (in a way that isn’t clearly insubstantial).
• In determining whether there would be significant adverse effects, consideration needs to be given both to the effects of the proposed change (or variation) itself, and to the overall or cumulative impact of the variation.
• The resultant EIA can focus on the environmental issues affected by the proposed change.  It should not normally be necessary to revisit other issues.

Notwithstanding these summary points, where any ambiguity arises it is for Scottish Government to provide the correct interpretation of its own guidance.

Providing advice

As for new wind farm proposals we may be consulted at screening, scoping and application stages of section 36C cases.

Screening stage

We should consider the following when providing screening advice:

• Avoid giving an opinion on whether a proposal requires an EIA.  Statutorily only the planning authority needs consulted on screening.  We are usually only consulted if Scottish Government has specific questions on natural heritage aspects.  As noted in our development management guidance (section 2.5), if asked to provide advice at screening stage, our role is to advise whether the proposal is likely to have any significant effects on the environment in order to help inform the competent authority’s decision as to whether an EIA is required.  (The exception to this is when we are asked for screening advice on proposals subject to The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (As Amended).  In these cases NatureScot is required to give a view ‘on whether the proposed works are an EIA project’.)
• Focus on the natural heritage interest affected by the proposed change.  For example, an application to increase turbine dimensions (but not change the development footprint) would not affect previous assessments of habitat loss or peat slide risk but may have implications for the previous assessment of landscape and visual impacts, or the assessment of collision risk to birds.  We should not seek to revisit those environmental issues that are unrelated to the proposed variation.
• Consider intensification of significant effects and the cumulative or overall effect of the change.  EIA will normally only be required if the change introduces a new significant effect, or if it intensifies an existing significant effect (in a way that is not clearly insubstantial).  In thinking about this, we need to consider the overall or cumulative impact of the change.  Note that, if screened in, the resulting EIA report is required to include the main respects in which the likely significant effects of the proposed varied development (i.e. the development which would then be authorised if modified as proposed) would differ from those described in the EIA report or environmental statement prepared in connection with the original section 36 consent.
• Consider changes in current knowledge and methods of assessment.  Whilst the primary focus will be on the possible effects of the variation itself, in some circumstance, for environmental issues related to the proposed variation, it may also be relevant to consider any changes in current knowledge or methods of assessment that could also contribute towards the identification of new significant effects or the intensification of existing significant effects.  For example, our screening advice might note the potential additional influence of changes in:
  • the abundance or distribution of vulnerable species;
  • the national or regional conservation status (or legal protection) of sensitive species;
  • the cumulative baseline for landscape or birds; and
  • collision risk avoidance rates for affected bird species.
• Considering  extensions to operational life.  Scottish Government’s section 36C guidance suggests that, depending on circumstances, an application to extend the period of operation of a generating station may or may not constitute EIA development.  However, based on recent wind farm screening decisions by Scottish Government, it is likely that the majority of section 36C life extensions will not be considered EIA development.  If you are consulted by Scottish Government over a life extension proposal, seek advice from a Renewable Energy Casework Adviser (RECA).  

Scoping stage

If EIA is required, adequate information describing the new or intensified effects should be provided in the EIA report.  Consider the following when responding to scoping consultation requests.

Ecological surveys

In most situations the existing ecological survey information can be relied upon for section 36C applications.  We will usually only recommend new survey in relation to the variation when there could have been a substantive change to environmental circumstances which could contribute to new or intensified significant effects.  If the original survey is substantially out of date there may be greater uncertainty in relation to such a change having occurred.

An initial walkover survey may help confirm that existing information can be relied on, or identify where new survey work is required.

It can be noted that pre-construction survey provides an existing additional safeguard, allowing mitigation measures to be adapted where necessary, and the avoidance of any offences in relation to protected species.

Further assessment

(a) Proposals to alter turbine dimensions

For section 36C proposals to alter (i.e. typically increase) turbine dimensions there are two key issues to consider – birds and landscape.

For birds, in the majority of cases where the number and location of turbines are not changing, all that will be needed is a re-working of the collision risk model, rather than new survey work.  Revised collision risk calculations should be presented in the EIA report and, where appropriate, in-combination with other wind farm developments.  Seek specialist bird advice if there are any complications such as when existing flight data only includes flights between the upper and lower limits of the previously proposed risk window, or flight data has been collected in a way that lumps it together above and below the previously proposed risk window, or if there are changes to the number and location of turbines.

For landscape advice, it is essential that adequate context is provided by the applicant.  We should seek to be proportionate over the visualisation material required to support the LVIA, however a judgement may need to be made by a landscape adviser over the adequacy of wirelines (which are less costly and time-consuming) versus photomontage visualisations (which will provide better context when considering the intensification of effects).

Onshore turbines of 150m or taller require visible aviation lighting, and so proposed increases to above this height will need lighting related assessment.  Please see Annex 2 of our general pre-application and scoping guidance for our advice on assessing the effects of turbine lighting.

Increased blade length may also have implications for maintaining any required buffer distances between blade tips and key habitat features for bats.

(b) Changes to the time-limits for commencement of development

Scottish Government’s section 36C guidance notes that a standard condition of any section 36 consent is that development must commence within five years of the consent, or such other period as the Scottish Ministers may thereafter direct.  A developer may write to the Scottish Ministers requesting such a direction.  Any direction which Ministers may choose to make in accordance with the condition will operate to extend the implementation date only in respect of the Electricity Act consent.  Such a direction does not operate to extend the implementation date for any associated deemed planning permission.  However, on varying a section 36 consent it is open to the Scottish Ministers to make a direction for planning permission to be deemed to be granted afresh.  This would then operate as a new planning permission and new time limits for implementation would apply.  The effect of such a direction would be to grant a new development consent, and, where a new development consent is sought, a new EIA report for the development may be required.  The resultant new EIA report would cover the same full range of environmental issues that was considered in the original application, and it may be possible to largely draw upon the earlier EIA report or environmental statement.

In these circumstances the focus for our advice may be on any updating required, for example considering whether there may have been changes to current knowledge and assessment methods that could now potentially result in the identification of new or intensified significant effects.

As a more general point, it is worth noting that if, on varying a section 36 consent, the deemed planning permission is also potentially to be varied in some way (e.g. changes to track layout) then the implication of those changes may also need to be considered for EIA.  This would also be taken into account by Scottish Government when carrying out any screening exercise.

Habitats Regulations Appraisal

Under the Habitats Regulations, all competent authorities must consider whether any plan or project will have a likely significant effect on a European site.  If so, they must carry out an appropriate assessment.  This is known as Habitats Regulations Appraisal (HRA).

In every case where HRA has been previously carried out, the continued suitability of that HRA for the variation application should be considered by the competent authority.  In some cases a revision to the previous HRA may be needed.  This may require a new consultation with us over any appropriate assessment, in which case we should provide advice.

Where a proposal has previously been subject to HRA, and the effect of the variation application can be demonstrated to be clearly insubstantial, it will still be good practice for the competent authority to record why this is so as part of an update to the original HRA.  As little as a couple of sentences presenting such reasoning could be considered as an update to the previous HRA, if the situation warrants it.

Where a proposal has not previously been subject to HRA, consideration should be given to the potential new need for HRA, noting that there sometimes may be circumstances where even a seemingly small change in methodology, timing, infrastructure etc., might trigger a change in position from ‘no likely significant effect’ to ‘likely significant effect’ on a European site, or a change in position regarding the appropriate assessment test on-site integrity.

Application stage

The focus of our advice should be on any new or intensified significant effects. If relevant, we should reference our earlier consultation response as context, but avoid repeating detail.

If we objected to the original, now consented, proposal, we should specify how the variation application has or hasn’t altered the effects that were the basis for our objection. Where the variation application gives rise to new or intensified significant effects relating to the same objection issue, it will be a matter of judgement as to whether to present our advice in the form of a new objection. We should not repeat our objection if there are no new or intensified significant effects, and any further grounds for a new objection will require the usual level of approval.