This update has been prepared by Iona Gatenby in Burges Salmon's Planning and Compulsory Purchase Team.

Introduction 

2025 looks set to be another busy year for across the planning regime in Scotland, with proposed legal reform, new policy and changes in procedure and process. This article provides a brief overview of 7 key ‘hot topics’ below to look out for in 2025: 

Legal reforms:

• Electricity Act 1989 reforms
• CPO reform
• Environmental Impact Assessment - calculation of upstream and downstream emissions following the Finch decision

New policy: 

• Biodiversity enhancement 
• National Marine Plan 2
• Community benefits

Procedure and process 

• Planning application fees and wait times

Legal reforms

Electricity Act 1989 reforms 

A consultation on proposed reforms to the Electricity Act 1989 ran from 28 October to 29 November 2024. The proposed reforms include: 

• mandatory pre-application consultation; 
• changes to triggers for public inquiries;
• a prescribed process for varying s37 consents;
• charging fees for processing; and
• standardising timescales for challenging onshore and offshore consents. 

The Electricity Act 1989 currently does not require pre-application consultation for s36 or s37 consents. The consultation proposes introduction of a standardised procedure for pre-application consultation, notification and publication. It also proposes that Scottish Ministers could recover costs of any pre-application activities and introduce an ‘Acceptance Stage’ where they can decline applications that have not met pre-application requirements. Whilst applicants can currently submit applications without any legal requirement to consult communities or statutory consultees, in our experience most applicants do carry out pre-application consultation and follow the Scottish Government guidance on doing so.[1] This proposal may therefore have limited impact in practice. 

The consultation also proposes various changes to the public inquiry process, including removal of the trigger for an automatic public inquiry where a planning authority objects to an application. The consultation proposes appointment by Scottish Ministers of a person to make an examination into the application and decide whether and to what extent further procedures are required. Whilst removal of formality of the process being a public inquiry will be welcome, the substance of the proposal may again have limited impact on how applications are determined in practice. Currently, a Reporter has a degree of flexibility in deciding what procedures to hold, whether it be an inquiry, hearing, both or a solely written process. Although the proposal would remove automatic trigger for a public inquiry upon objection by a planning authority, a Reporter will nonetheless need to take into account a planning authority’s views on a planning application and proposed process, regardless of any automatic trigger. 

One thing that remains absent is no statutory time limit within which Scottish Ministers must make their decision on a s36 consent. Without that clearer structure in place for determination of Electricity Act applications, there is little to prevent the current issue many developers face that applications remain ‘in the system’ with no clear timeline for a decision. 

The Department for Energy Security and Net Zero is currently reviewing the consultation responses and is required to publish these within 12 weeks of the consultation, which is 21 February 2024. 

CPO reform 

The Scottish Government is currently working to reform and modernise the compulsory purchase system in Scotland. The Scottish Law Commission published a discussion paper on CPO Reform in December 2014, which reviewed the CPO regime and recommended a new statute to reform the existing CPO regime. Scottish Government has now published a progress report on compulsory purchase reforms on 18 December 2024, a decade after the Scottish Law Commission’s report was published. Scottish Government has broken down the reform into 5 building blocks: 

• Enabling powers; 
• Early engagement & preparation; 
• Confirmation procedures; 
• Taking possession & title; 
• Compensation. 

Since announcing the reform in Spring 2024, the Scottish Government has primarily worked on the first two of these buildings blocks, and intends to undertake work on the further two building blocks in early 2025, followed by undertaking engagement and policy development on compensation. Scottish Government has confirmed it anticipates carrying out stakeholder engagement focussed specifically on compensation from February/March 2025 and will carry out a public consultation on proposed measures in Summer/Autumn 2025. The Scottish Government has said any substantive change to compulsory purchase legislation will involve making amendments to primary legislation through a Bill which would need to be taken forward in the next Parliamentary Session, likely in 2026. 

Impacts of Finch

2025 is likely to see some further development in EIA law and practice following on from the decision of the UK Supreme Court in R (on the application of Finch) v Surrey County Council [2024] UKSC 20.  The Finch ruling set out that in carrying out an EIA of a project for the extraction of oil, an assessment was required to include the indirect environmental effects of greenhouse gas emissions arising from the ultimate combustion of the oil once refined and burned as fuel. The ramifications of this decision are therefore that downstream (scope 3) emissions are necessary to include within an EIA assessment where there is a direct link between the project and their creation, limited to the extent that downstream impacts can be predicted as an indirect effect of the proposed development. 

Finch has already prompted several cases in England and now one in Scotland. An application for judicial review was made by Greenpeace seeking to block the development of the Rosebank oil field and Jackdaw gas field[2]. The judicial review was brought on the basis of Greenpeace arguing that the environmental impact assessments (EIA) carried out by the developers should have considered downstream emissions (i.e. the impacts of the greenhouse gas emissions released when the fossil fuels were eventually burned). The UK government conceded that the Rosebank oil field was unlawfully approved following the Finch ruling. 

The ongoing dispute relates to remedies, with the UK Government arguing that although the decision was unlawful, the same ultimate decision (i.e. to grant consent) would be made even if an EIA considering downstream emissions was carried out and identified significant effects. They therefore argue that the Court should exercise its discretion not to quash the decision. 

The judicial review was heard in the Inner House of the Court of Session on 12 November 2024, and the judgment by Lord Ericht is expected in due course, likely early 2025. Already, we know that the impact of Finch means that proposed developments need to consider whether an EIA of downstream emissions needs to be undertaken from the outset if significant downstream emissions would be anticipated and emerging case law through 2025 is likely to give greater clarity to how Finch should be applied in practice. 

EIA Reports remain a key area in the planning process that is susceptible to legal challenge, and it is important that developers get the scope and content of their impact assessments right at the outset of a development. Any further guidance that emerges from Court decisions following on from  Finch will be an important consideration for EIA practitioners and developers. 

New policy 

Biodiversity enhancement / net gain 

NPF4 policy 3 introduced a new requirement for biodiversity enhancement. The stated intent of the policy was to protect biodiversity, reverse biodiversity loss, deliver positive effects from development and strengthen nature networks. Policy 3 includes a range of provisions requiring developers to enhance biodiversity, with the precise tests changing depending on scale of development and where they sit in the development hierarchy. 

It is important to note that the biodiversity enhancement approach set out in NPF4 differs from the well-publicised measures for ‘biodiversity net gain’ in England, which imposes a legal requirement for a minimum 10% uplift compared to baseline. The Scottish approach, imposed through policy, allows a greater degree of planning judgment to be applied. NatureScot has published Developing with Nature Guidance which applies to local development. There is not yet any specific guidance published for EIA, national or major developments.

NPF4 Policy 3b states that national and major developments, or those subject to Environmental Impact Assessment (EIA), will only be supported where it can be shown that they will conserve, restore and enhance biodiversity, including nature networks, so they are in a demonstrably better state than without intervention. The policy requires that such proposals demonstrate significant biodiversity enhancement, in addition to any proposed mitigation. Scottish Government has commissioned NatureScot to develop a Scottish-specific biodiversity net gain metric (rather than adopting the English Defra metric) which developers will be able to use to calculate and evidence the extent of the enhancement measures. NatureScot consulted on key issues in May 2024, and is now working to establish the metric foundations and address priority issues. NatureScot have not published any timescales on this work.  

In the meantime, Scottish Government Draft Planning Guidance on Biodiversity confirms that the absence of an established metric should not delay decision-making, but that a flexible approach must be taken.  It is also worth bearing in mind the NPF4 must be read as a whole, and that failure to satisfy one policy of NPF4 will not automatically mean a development is not in accordance with NPF4, but that planning judgment must be applied in each case. Developers should also use NatureScot’s Developing with Nature Guidance in developing biodiversity enhancement proposals, bearing in mind that this applies to local development, but can be a useful starting point for EIA, national or major developments in the absence of other guidance. 

National Marine Plan 2

The National Marine Plan 2 (NMP2) planning position statement was published on 5 November 2024. This sets out the work to date on Scotland’s NMP2, consolidating stakeholder feedback and setting out the latest objectives and policies ideas for NMP2. This planning position statement is currently being consulted upon, with consultation closing 28 January 2025. Under the Marine (Scotland) Act 2010 and Marine and Coastal Access Act 2009, Scottish Ministers are required to prepare and adopt a marine plan for the Scottish marine area. Scotland’s first National Marine Plan was adopted in 2015 and was reviewed in 2018 and 2021. The planning position statement focuses on sustainable development and a blue economy approach to NMP2, which involves considering the environment, social well being and the economy cohesively. The planning position statement sets out 6 blue economy outcomes: 

• Scotland’s marine ecosystems are healthy and functioning, with nature protected and activities managed using an ecosystem-based approach to ensure negative impacts on marine ecosystems are minimised and, where possible, reversed.
• Scotland’s blue economy is resilient to climate change, contributing to climate change mitigation and adaptation, with marine sectors decarbonised, resource efficient and supporting Scotland’s Net Zero and nature positive commitments; 
• Established and emerging marine sectors are innovative, entrepreneurial, productive and internationally competitive; 
• Scotland is a global leader in healthy, quality, sustainably harvested and farmed Blue Foods;
• Thriving, resilient, regenerated, health communities have more equal access to the benefits ocean resources provide; and
• Scotland is an ocean literate and aware nation. 

Section 5 of the planning position statement sets out policy proposals for NMP2 as derived from feedback from stakeholders in the review of national marine policy. A few key points from this section are:

• Feedback received so far includes adopting a strategic approach to compensatory measures for sectoral marine planning for offshore renewables, including clarity on decision makers’ approach to HRA derogation. The Scottish Government will consider as part of NMP2 further support for derogation cases for offshore wind as set out in the UK Government National Policy Statements designated in January 2024
• NMP2 will support key industries, which includes sustainable aquaculture and energy. NMP2 will seek to support ambitions for hydrogen production and carbon capture and storage and consideration of co-location opportunities. The planning policy statement also refers to the wider update to the Sectoral Marine Plan for Offshore Wind Energy in which the Scottish Government will consider opportunities to enable strategic compensation through plan level derogation. 
• The planning policy statement confirms that there is not sufficient data available to meet the requirements for comprehensive special mapping or practical use of a natural capital approach to decision making in NMP2. The Scottish Government is nonetheless developing a natural capital asset and risk register for the marine area in Strategic Environmental Assessment to try to build up this evidential base. 
• NMP2 will introduce a new decision-making framework to support streamlined consenting and implementation by improving evidence on the impacts and benefits of individual decisions. This will be done by introducing a series of planning policies and promoting the inclusion of marine users and communities in strategic decisions.
• NMP2 will seek to integrate adaptive management principles (defined by the World Development Bank as “Adaptive marine spatial plans that prepare for and dynamically respond to changes in resource distribution and abundance, and ecosystem services resulting from climate change impacts”). 

The deadline to submit a response to the consultation is 28 January 2025. 

Community benefits

Scottish Government published a consultation on community benefits from renewable energy developments on 19 December 2024 which closes on 11 April 2025. This consultation is part of a review of the Good Practice Principles for onshore and offshore renewable energy to ensure developers and communities get the best from community benefits. The current Good Practice Principles, which have been in place since 2014, set a recommended community benefit contribution at £5,000 per megawatt per year for onshore renewables projects. The Scottish Coalition on Community Energy have called for this figure to be increased to £7,300 per megawatt per annum. 

The consultation also looks at the potential for shared ownership models, recognising that community benefit funds can only go so far. This consultation notes that, although shared ownership is not included in the existing Good Practice Principles for offshore wind, there is an increasing interest from both communities and industry in how shared ownership could increase the distribution of wealth generated through offshore wind. This is supported by Policy 25 of NPF4 on community wealth building, which supports development proposals which contribute to community wealth and that are linked to community ownership. Looking wider in the UK. the Welsh Government have also recently published guidance on local and shared ownership of energy projects, suggesting shared ownership models will become more commonplace throughout the UK. 

Procedure and process 

Planning fees and wait times

Planning application fees increased on 12 December 2024 through the Town and Country Planning (Fees for Applications) (Scotland) Amendment Regulations 2024. This increases all planning fees and raises the maximum planning fee from £150,000 to £172,856. The Scottish Government has said that the increase in fees is to facilitate an improved planning service, although there has been no commitment to the ringfencing of planning fees to planning services. Scottish Government’s Planning and the Housing Emergency – Delivery Plan indicates that planning fees will be further increased in April 2025 and June 2025. 

Scottish Government published planning application data for decisions in the year 2023-2024 ending 31 March 2024 on 11 November 2024. This data shows that the average decision time for local development planning permission application was 11.6 weeks and for major development applications was 36.1 weeks (both without a processing agreement). These times are 2 weeks and 2.6 weeks slower than the 2019/2020 year respectively. 

Conclusion 

2025 will be a busy year for Scottish planning, with multiple consultations coming to a close and reforms progressing. There are multiple substantive legal, policy and procedural updates coming forward that developers should keep an eye out for, as they could have significant implications on approaches to planning applications, EIA and any public inquiries and judicial reviews developers may encounter.  If you have any queries on any of the topics discussed in this article, please contact Patrick Munro, Legal Director or Iona Gatenby, Solicitor in our Planning and Compulsory Purchase Team. 
 

[1] Available here: https://www.gov.scot/publications/good-practice-guidance-applications-under-sections-36-37-electricity-act-1989/

[2] Greenpeace Limited for Judicial Review (references P967/23 (Rosebank Field) and P560/22 (Jackdaw Field))