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Beauly Denny inquiry to proceed  

Scottish Ministers, having considered legal submissions submitted to the Beauly Denny Public Inquiry, on behalf of Eilean Aigas Estate, Highlands before Pylons and Scotland before Pylons, and the Beauly Denny Landscape Group (BDLG), together with the further submissions on behalf of Scottish Hydro Electric Transmission Ltd and Scottish Powers Transmission Ltd, have decided that the inquiry will proceed at present on the agreed timetable.

The inquiry is into the proposed route for the 400,000 volts (400kV) overhead electricity transmission line which will replace the existing 132,000 volts (132kV) transmission line between Beauly, west of Inverness, and Denny, west of Falkirk.

Letters to parties from Jane Morgan, Energy, Enterprise and Tourism Directorate, setting out the Government’s conclusions:

To: Beauly Denny Landscape Group, a coaltion of the National Trust for Scotland and five other organisations

BEAULY-DENNY PUBLIC INQUIRY- MOTION AND LEGAL SUBMISSION

ELECTRICITY WORKS (ENVIRONMENTAL IMPACT ASSESSMENT) ( SCOTLAND ) REGULATIONS 2000 (“the 2000 Regulations)

ABSENCE OF RELEVANT EVIDENCE FROM OFGEM

I refer to the motion and legal submissions submitted to the inquiry by you on behalf of BDLG on 13 March 2007 and by Hazel Scott on behalf of Scottish Hydro-Electric Transmission Ltd and Scottish Powers Transmission Ltd (“the Applicants”) dated 22 March 2007.

2. Having now considered the legal submissions made in writing by the parties, the Scottish Ministers’ conclusions are set out in this letter.

3. In terms of your first submission: OFGEM is required under section 3A(5) of the Electricity Act 1989 (“the 1989 Act”) in carrying out its functions under Part I of that Act to, inter alia, do so in the manner which it considers is best calculated to contribute to the achievement of sustainable development, and to have regard to the effect on the environment of activities connected with generation, transmission, distribution or supply of electricity. You contend that there is no evidence before the inquiry that OFGEM has done either of these in giving authority to the Applicants, and that this evidence is relevant and material to the inquiry. You submit that in the absence of relevant and material evidence at the inquiry, then no recommendation reached by the Reporter and no decision by the Scottish Ministers can be intra vires in terms of the power to consent under section 37 of the 1989 Act.

4. The Scottish Ministers do not consider that there is any obligation on the Reporter to compel the production of evidence or the attendance of witnesses from OFGEM on those issues. They further do not accept that questions as to the legality of the acts of OFGEM or how they have exercised their statutory powers should be raised in an inquiry of this nature where OFGEM is not a party. Therefore the Scottish Ministers have concluded that there is no statutory obligation that evidence as to how OFGEM complied with the terms of section 3A(5) must be considered by the inquiry, or, indeed, by Ministers in taking a decision to grant or refuse consent under the 1989 Act.

5. Secondly, you contend that the EIA submitted by the Applicants in accordance with the 2000 Regulations is deficient in that regulation 4(1)(a) of, and paragraph 4 of Part II of Schedule 4 to those Regulations requires the EIA to contain the “main alternatives studied by the applicant and the main reasons for his choice taking into account environmental effects”. In your submission, those alternatives should have included a sub-sea cable and an East Coast route.

6. While both those options may have been under consideration at any early stage by the Applicants in formulating the proposed route for the transmission line, on the information currently available to them the Scottish Ministers do not consider that either option was a main alternative to the particular routing for which consent is now sought. Therefore Ministers are currently satisfied that the EIA is not deficient in respect of consideration of these alternatives in terms of regulation 4(1)(a) of, and paragraph 4 of Part II of Schedule 4 to, the EIA Regulations.

7. This letter is without prejudice to any consideration by the Scottish Ministers of compliance of the EIA with the EIA Regulations in respect of this application at any later stage when considering this application. It is for the applicants to ensure that the necessary environmental information has been placed before the inquiry in support of their proposal and for any party seeking to justify a contrary position to do likewise.

8. A copy of this letter has been sent to the planning authorities and to the Applicants.

__________

To: Eilean Aigas Estate

MOTION AND LEGAL SUBMISSION – STRATEGIC ENVIRONMENTAL ASSESSMENT

1. I refer to the motion and legal submissions submitted to the inquiry by your Jamie Whittle of Urquhart Solicitors (on behalf of Eilean Aigas Estate) on 13 March 2007 and by Hazel Scott on behalf of Scottish Hydro-Electric Transmission Ltd and Scottish Powers Transmission Ltd (“the Applicants”) dated 22 March 2007. The submissions relate to the requirements in relation to Strategic Environmental Assessment (SEA) in respect of the inquiry into the application made for consent under section 37 of the Electricity Act 1989 and for deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997 for a 400,000 volt steel tower double circuit transmission line to run between Beauly and Denny.

2. Having now carefully considered the legal submissions made in writing by the parties, the Scottish Ministers have decided to allow the PLI to proceed, based on the conclusions set out in this letter.

Strategic Environmental Assessment

3. The European Directive 2001/42/EC (“the Directive”) provides for the assessment of the effects of certain plans and programmes on the environment. The Directive was initially implemented by the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004 (“the 2004 Regulations”), followed by the Environmental Assessment (Scotland) Act 2005 (“the 2005 Act”). The 2005 Act revokes the 2004 Regulations, with the exception of those plans or programmes which were begun before the coming into force date of the 2005 Act. In such cases, the 2004 Regulations continue to apply.

4. The 2004 Regulations and the 2005 Act require, in short, that an SEA be carried out for certain plans and programmes. The SEA is to be carried out during the preparation of the plan or programme and before its adoption or submission to legislative procedure. Your submission is, essentially, that no such assessment has been carried out in respect of the Beauly-Denny proposal before such a time. As a result, your contention is that the inquiry cannot proceed. In response, the Applicants argue that, for the reasons set out in their submission, no SEA is required in respect of the proposal.

Consideration

5. The requirement to carry out SEA only applies to certain types of plans or programmes which are prepared or carried out by certain authorities on or after particular dates. The correct statutory framework for SEA (i.e. whether the 2004 Regulations or the 2005 Act should apply) is determined by reference to the dates of the “first formal preparatory act” of the plan or programme. Section 5(1) of the 2005 Act provides that if the first formal preparatory act in respect of a plan or programme is before the commencement of that section on 20 February 2006, then they are not “qualifying plans or programmes” in that Act. The Scottish Ministers consider that the only event of any significance that appears to have taken place after 20 February 2006 is the start of the inquiry on 6 February 2007. They consider therefore that the relevant statutory provisions are the 2004 regulations.

7. Article 2 of the Directive as applied by regulation 2(1) of the 2004 Regulations sets out certain characteristics which plans or programmes must possess for the Directive to apply, i.e. plans which:

* are subject to preparation or adoption by an authority at national, regional or local level through a legislative procedure; and
* which are required by legislative, regulatory or administrative provisions.

8. Your submission notes that the proposal is subject to legislative, regulatory or administrative provisions and argues that it is part of a regulatory and administrative programme. However, the Scottish Ministers concur with the view as expressed in the Reporter’s letter of 22 December 2006 that the Beauly-Denny proposal is not required by any legislative, regulatory or administrative provision.

9. As noted in their submission of 22 March 2007, the Applicants have a statutory duty under the Electricity Act 1989 to develop and maintain an efficient, co-ordinated and economical system of electricity distribution. The Beauly-Denny proposal does appear to have its origins, at least in part, under that statutory duty. However, the Scottish Ministers consider there is no statutory compulsion on the Applicants to proceed with this proposal, if they decided not to do so. Even if Ministers were to grant consent under section 37 of the Electricity Act 1989 either with or without conditions, it is open to the Applicants to not proceed with the installation at all. The Applicants’ statutory duties under the Electricity Act 1989 do not, in the Scottish Ministers’ view, create a specific obligation to execute the works.

Conclusion

10. The Scottish Ministers conclude that the Beauly Denny proposal is not required by legislative, regulatory or administrative provisions in terms of the 2004 Regulations. Therefore the Scottish Ministers have decided that the PLI will therefore proceed as scheduled.

11. It is not considered therefore necessary for the Scottish Ministers to make a determination on the other issues raised in your submissions. A copy of this letter has been sent to the planning authorities, and the Applicants.

__________

To: Highlands Before Pylons and Scotland Against Pylons

MOTION AND LEGAL SUBMISSION- ELECTRICITY WORKS (ENVIRONMENTAL IMPACT ASSESSMENT) ( SCOTLAND) REGULATIONS 2000 (“the 2000 Regulations)

1. I refer to the motion and legal submissions submitted to the inquiry by you on behalf of Highlands before Pylons and Scotland before Pylons on 13 March 2007 and by Hazel Scott on behalf of Scottish Hydro-Electric Transmission Ltd and Scottish Powers Transmission Ltd (“the Applicants”) dated 22 March 2007.

2. Having now carefully considered all the legal submissions made in writing by the parties, the Scottish Ministers’ conclusions are set out in this letter.

3. You submit that the Environmental Impact Assessment (“EIA”) submitted with the application for consent under section 37 of the Electricity Act 1989 in accordance with the 2000 Regulations did not comply with the terms of regulation 4(1)(b) of, and paragraph 3 of Part I of Schedule 4 to, of those Regulations. Those provisions require that the environmental statement must contain certain information, including a description of the “likely significant effects of the development”. You contend that the EIA is deficient, in that it failed to cover the effects of future potential projects, such as arrangements for transmission from the Western and Northern Isles.

4. The Scottish Ministers are of the view that there is currently no certainty as to what the eventual nature of any arrangements for connection between the Beauly-Denny line, should consent be granted, and the Western and Northern Isles might ultimately be. Any attempt to describe environmental effects of such arrangements could only be on the most speculative of bases. The Scottish Ministers consider that the 2000 Regulations do not require entirely speculative evaluation of such future potential projects. Therefore, the Scottish Ministers conclude that information on environmental effects relating to transmission arrangements for the Western and Northern Isles would go beyond what can be “reasonably required” in terms of EIA, and they are satisfied that the EIA as submitted by the Applicants can not be considered so deficient as not to constitute an EIA on this basis in terms of the 2000 Regulations in respect of regulation 4(1)(b) and Paragraph 3 of Part I of Schedule 4.

5. This letter is without prejudice to any consideration of assessments made under the 2000 Regulations by Scottish Ministers at any later stage when considering this application. It is for the applicants to ensure that the environmental information necessary to allow such assessments has been placed before the inquiry.

6. A copy of this letter has been sent to the Applicants.

Scottish Executive

29 June 2007

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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