Commentary on Sections Other infrastructure provisions Section 20: Variation of consents under Electricity Act 1989
92.Under section 36 of the Electricity Act 1989, consent is required for the construction, operation or extension of certain electricity generating stations (although the scope of this requirement is now limited to those projects which do not require development consent under the Planning Act 2008). Depending on the location of the proposed development, these consents are granted by the Secretary of State, the Marine Management Organisation, or Scottish Ministers. At present, if the developer’s plans regarding aspects of their proposals which have been specifically referenced in the section 36 consent change, they may find themselves unable to proceed. Because it has not previously been possible to vary section 36 consents, this can lead to a situation where the terms of the consent prevent construction from proceeding, even along lines which may be more efficient or environmentally beneficial. Section 20 provides the Secretary of State, Scottish Ministers and the Marine Management Organisation with a power to vary section 36 consents.
93.The provision is intended to put holders of section 36 consents in a position similar to that of those who have the benefit of development consent orders made under the Planning Act 2008, to which changes can be made by the relevant Secretaries of State to take account of, for example, changes in technology and design.
94.Section 20 inserts a new section 36C into the Electricity Act 1989. The power to vary section 36 consents, exercisable on the application of the person for the time being entitled to the benefit of such a consent, is set out in subsection (4) of new section 36C along with the matters that the authority exercising the power must have regard to before exercising it. Subsections (2), (3) and (5) of new section 36C set out the scope of regulations which the Secretary of State and Scottish Ministers may make about the procedural aspects of applications for variation. The definition of “the appropriate authority” in subsection (6) of new section 36C sets out in which cases the powers will be exercisable by each of the authorities concerned.