Approved renewable energy projects with the potential to double Scotland’s wind power capacity are under threat following a legal ruling, according to legal experts.
Last week the Court of Session overturned the Scottish Government’s approval for a giant windfarm in Shetland.
Lady Clark ruled the decision to give consent to the 103-turbine Viking Energy development was incompetent as the scheme did not have an electricity generating licence.
The Scottish Government, which is appealing the ruling, said it would not affect planning.
According to Scottish Government figures 32 projects with a combined total of 3,800MW have been given consent with Scotland’s entire onshore capacity currently at 4,100MW.
A further 53 applications for consent are still outstanding, with only eight having a generating licence. Law firm HBJGately said Lady Clark’s ruling meant that any organisation wishing to apply to construct a new power station with a capacity of more than 50MW would first have to obtain a generating licence from the energy regulator Ofgem.
Up until last week’s decision, there was no expectation that a licence was required to enable an application to be made for consent under section 36 of the Electricity Act 1989, which no longer applies in England and Wales.
Paul Minto, an energy partner with HBJ Gately, said when the act was introduced there were six big energy producers burning oil, coal and gas, along with nuclear, but it needed to change to reflect the advent of renewables with smaller generators.
“The larger wind, wave, tidal and hydro projects will be caught by this decision,” he said.
“I would expect that moves to standardise the consenting requirements across the UK are already underway, but for the time being this decision poses a threat and additional costs to the newly emerging renewables industry.” He said it can take two or three years for a windfarm to be built following consent, so current projects with consent may be vulnerable if they do not have a generating licence.
A Scottish Government spokeswoman said the ruling concerned the Electricity Act and did not relate to how the planning system operates. “Our intention is to continue to operate in accordance with the interpretation of the legislation which has been followed for many years and to continue to deal with current applications in line with the established practice.”