A recent appeal decision confirms that a Generation Licence from OFGEM is not needed before planning consent is given for the larger onshore wind farms in Scotland.
Although planning applications for >50M wind farms in England and Wales are no longer made under legislation specific to the electricity sector, the Scottish appeal decision shows that obtaining a Generation Licences and Planning Consent are now very different regimes North and South of the border.
The Viking Wind Farm project in Shetland was challenged in the Scottish courts after the Scottish Ministers gave it Planning Consent in 2012. As part of her ruling, the judge at first instance, Lady Clark of Carlton, held that the consent given was unlawful because the applicant did not hold a Generation Licence at the relevant time. When it was first published in September 2013 the decision caused a degree of consternation in the wind farm industry. This is because throughout the UK since at least the 1990s, with many more since 2000, Planning Consents had been given to applicants who were not also Generation Licence holders at the time when they applied for their Planning Consents. When the Viking Project first stalled in this way, so did the prospects for getting a new cable connection from Shetland to mainland Scotland. Objectors called for all then current wind farm applications to be put on hold; while the Scottish Government is understood to have started making plans to seek changes to the 1989 Electricity legislation. However, on 9 July, the Scottish Appeal Court reversed Lady Clark’s ruling.
But a further challenge could yet be made. The body which made the original challenge, Sustainable Shetland, could take the appeal process to a higher court; and Mr Trump’s continuing challenges to the offshore wind farm project near his golf course in Aberdeenshire, may yet play a part in the eventual outcome for the Generation Licence issue.This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.