Overview
Part 2 – Heat network consent
Introductory
Section 18: Requirement for heat network consent
39.A heat network must not be constructed or operated without a heat network consent (subsection (1)).
40.References in this Act to the construction of a heat network include references to the construction of an extension to an existing heat network (subsection (2)). The term “heat network consent” is defined in subsection (3).
Section 19: Exemptions from requirement for heat network consent
41.Subsection (1) enables the Scottish Ministers by regulations to create exemptions to the requirement for a heat network consent in specified circumstances and in relation to heat networks of a specified description.
42.The Scottish Ministers may grant exemptions either indefinitely, or for a specified period, and either unconditionally, or subject to conditions (subsection (2)) and may make different provision for different areas (subsection (3)).
Section 20: Designation of local authority as consent authority for the area of the local authority
43.Section 20 enables the Scottish Ministers, by regulations, to designate a local authority as the consent authority for the area of the local authority (subsection (1). Where a local authority is designated as a consent authority for its area, it becomes responsible for the functions set out in Part 2, in relation to its area.
44.Subsection (2) specifies that, when a local authority submits a written request to the Scottish Ministers to become the consent authority for the area of the local authority, the Scottish Ministers must make regulations designating the local authority as such (under section subsection (1)) within 6 months, unless the local authority has withdrawn the request in writing.
45.Subsection (3) allows any regulations made under subsection (1) to modify Parts 2 or 7 of the Act, as may be necessary as a result of designating a local authority as the consent authority for its area.
46.Subsection (4) requires the Scottish Ministers to consult the local authority that is due to be designated as the consent authority for its area, and any other persons they consider appropriate, before making regulations under subsection (1).
47.When regulations under subsection (1) are subject to the affirmative procedure (that is where they textually amend an Act), then references to “making regulations under subsection (1)” in subsections (2) and (4) should instead be read as “laying a draft of a Scottish statutory instrument containing regulations under subsection (1) before the Scottish Parliament” (subsection (5)).
Section 21: Meaning of “appropriate consent authority”
48.Section 21 provides that for the purposes of Part 2, an “appropriate consent authority” is either: a local authority which has been designated as consent authority for its area by regulations under section 20(1); or the Scottish Ministers, in those areas where the local authority has not been designated as a consent authority for its area by regulations under section 20(1).
Heat network consent applications
Section 22: Heat network consent applications
49.A person may apply to the appropriate consent authority for a heat network consent (subsection (1)). Subsection (3) allows for heat network consent applications to be made either in relation to the construction of a heat network, the operation of a heat network, or both.
Section 23: Determining heat network consent applications
50.The appropriate consent authority may agree to a heat network consent application and grant a heat network consent, or refuse the application (subsection (1)). Before granting the consent, the appropriate consent authority must be satisfied that each person the consent is granted to has, or will have, a right to use each listed asset of the heat network (defined in section 91) for the purpose of operating it (subsection (3)). Where the appropriate consent authority proposes to refuse an application, it must give the applicant notice of the proposed refusal. The notice must set out the reasons for the proposed refusal and specify a date by which the applicant may make representations to the appropriate consent authority (subsection (4)).
Heat network consent conditions or limitations
Section 24: Heat network consent conditions or limitations
51.Section 24 makes provision for the appropriate consent authority to grant a heat network consent, subject to certain conditions or limitations as it considers appropriate.
Transfer, modification and revocation of heat network consent
Section 25: Transfer of heat network consent
52.The transfer of a heat network consent is permitted with the agreement of the appropriate consent authority (subsection (1)). The appropriate consent authority may agree to the transfer of the consent, subject to the modification of any condition or limitation of the consent, or may require additional conditions or limitations to be included in the terms of the consent (subsection (2)).
Section 26: Modification of heat network consent
53.The appropriate consent authority may modify a heat network consent (subsection (1)) either following the application of the consent holder or on its own initiative (subsection (2)). An application by a consent holder is to be referred to as a “heat network consent modification application” (subsection (3)). If the appropriate consent authority decides to modify a heat network consent, a copy of the modified consent must be given to the consent holder (subsection (4)).
Section 27: Revocation of heat network consent
54.Section 27 enables the Scottish Ministers, by regulations, to set out the circumstances in which the appropriate consent authority may revoke a heat network consent.
55.Subsection (2) requires the appropriate consent authority to give notice to the consent holder of its intention to revoke a heat network consent prior to doing so. Subsection (3) then specifies what that notice must include.
56.Where an appropriate consent authority proceeds to revoke a consent, it may do so by notifying the consent holder (subsection (4)). Subsection (5) requires that where doing so, the consent authority must specify in its notice the reason(s) for revocation and the date from which revocation will take effect.
57.Subsection (7) enables the Scottish Ministers, by regulations, to make further procedural provision in relation to the revocation of heat network consent.
Section 28: Appeals against notice of revocation given by local authority
58.Section 28 enables consent holders to appeal to the Scottish Ministers in the event that a local authority, in its capacity as the appropriate consent authority, proposes to revoke a heat network consent.
59.Where such an appeal is made, subsection (2) prevents a notice of revocation issued by a local authority (under section 27) from taking effect pending the final determination or withdrawal of the appeal.
60.Subsection (3) allows the Scottish Ministers, by regulations, to make provision about appeals under section 28. Subsection (4) specifies the matters for which any such regulations may provide.
61.Subsection (5) specifies that the reference in subsection (4)(e) to regulations under subsection (3) making provision about the manner in which appeals are to be conducted includes provision about the holding of inquiries or hearings. Subsection (6) specifies the maximum penalty that may be provided for in regulations creating an offence under subsection (3) which is, on summary conviction, to a fine not exceeding level 1 on the standard scale or imprisonment for a period not exceeding 3 months.
62.Subsection (7) enables regulations under section 28 to modify any enactment.
Applications to local authorities: Ministerial powers of call-in, direction and appeal
Section 29: Call-in of heat network consent applications etc. by the Scottish Ministers
63.Section 29 provides that the Scottish Ministers may give directions requiring a heat network consent application, heat network consent modification application, or an application or consent etc. required by a heat network consent condition, be considered by them rather than a local authority as the appropriate consent authority. That is to say, the Scottish Ministers may require the “call-in” of such applications.
64.Subsection (3) specifies that a direction must be made in writing; may be withdrawn or modified by a subsequent direction; may be made to an individual local authority acting as appropriate consent authority, or to those acting as consent authorities generally; and can relate to specific applications or to applications of a particular type as set out in the direction.
65.Where an application is called-in, sections 23, 24, 26, and 33(5) apply to the called-in application as they apply to an application that is to be determined by the local authority as the appropriate consent authority (subsection (5)) except that references in those sections to “the appropriate consent authority” are to be read as references to “the Scottish Ministers”.
66.Subsection (6) enables the Scottish Ministers, by regulations, to make further provision about directions and the determination of called-in applications. Subsection (7) specifies that any such regulations may include provision about the notification and publication of notices to local authorities and the procedure for determining called-in applications.
67.Subsection (8) enables regulations under section 29 to modify any enactment.
Section 30: Directions as to method of dealing with heat network consent applications etc. by local authorities
68.Section 30 enables the Scottish Ministers, by regulations, to make provision about how local authorities as appropriate consent authorities are to deal with heat network consent applications, heat network consent modification applications, and applications relating to conditions etc. required by a heat network consent condition.
69.Subsection (3) specifies that any such regulations may include provision about: restricting the ability of local authorities to determine applications; requiring local authorities to consider imposing a condition in respect of an application; providing information to the Scottish Ministers (and others if specified in the regulations) about an application.
Section 31: Appeals regarding applications for heat network consent etc. to local authorities
70.Section 31 enables appeals to be made to the Scottish Ministers about certain decisions or failures of a local authority as the appropriate consent authority. Subsection (1) specifies the decisions or failures that may be appealed to the Scottish Ministers.
71.Subsection (4) enables the Scottish Ministers, by regulations, to make further provision in connection with appeals and subsection (5) specifies for what matters any such regulations may provide.
72.Subsection (6) specifies that the reference in subsection (5)(e) to regulations under subsection (4) making provision about the manner in which appeals are to be conducted includes provision about the holding of inquiries or hearings.
73.Subsection (7) specifies the maximum penalty that may be provided for in regulations creating an offence under subsection (4) which is, on summary conviction, to a fine not exceeding level 1 on the standard scale or imprisonment for a period not exceeding 3 months.
74.Subsection (8) enables regulations under subsection (4) to modify any enactment.
Compensation
Section 32: Compensation on modification or revocation of heat network consent
75.Subsection (1) provides that the Scottish Ministers may by regulations make provision for the payment of compensation to the holder of a heat network consent if a consent is modified or revoked. The regulation making power allows the Scottish Ministers to make provision for the circumstances in which compensation is payable, the calculation of compensation, the procedure for claiming compensation, and the review and appeal of decisions made under the regulations (subsection (2)).
76.Subsection (3) requires the Scottish Ministers to consult local authorities and any other persons they consider appropriate, prior to making regulations under subsection (1).
Miscellaneous
Section 33: Form and manner etc. of applications under Part 2
77.The Scottish Ministers can determine the form and manner in which a “relevant application” can be made as well as the information that is to be included in the application (subsection (1)) and must publish the determination in such manner as they consider appropriate (subsection (4)). “Relevant application” means a heat network consent application, a heat network consent modification application, or an application for a consent, agreement or approval required by a condition of a heat network consent (subsection (7)). A relevant application that does not conform to the requirements determined by the Scottish Ministers does not need to be considered by the appropriate consent authority (subsection (5)).
78.Subsection (2) specifies that, in determining the information that is to be included in a relevant application, the Scottish Ministers can require certain types of application to include a “community engagement report”. Subsection (3) clarifies that a “community engagement report” must set out the engagement that an applicant has undertaken with the relevant community, and how the views it has received have been taken into account.
79.Subsection (6) requires the Scottish Ministers to consult local authorities and any other persons they consider appropriate, prior to making any determination under subsection (1).
Section 34: Effective community engagement: guidance
80.Section 34 enables the Scottish Ministers to issue guidance about undertaking effective community engagement for the purpose of preparing a community engagement report (as defined in section 33(3)) where one is required.
81.Subsection (2) specifies that any such guidance may include guidance on the persons considered to form a “community” and how applicants are to undertake effective community engagement.
82.Subsection (3) requires the Scottish Ministers to consult such persons as they consider appropriate before issuing any guidance under section 34.
83.Subsection (4) requires the Scottish Ministers to publish any guidance developed under section 34, while subsection (5) requires any affected applicants (determined under section 33(1)(b)) to have regard to the guidance issued.
Section 35: Regulations about decisions under Part 2
84.Subsection (1) provides that the Scottish Ministers may by regulations make provision about the procedure to be followed in determining relevant applications (as defined in section 33(7)) or deciding whether to modify a heat network consent on the appropriate consent authority’s own initiative under section 26(2)(b).
85.Subsection (1) also provides that those regulations may make provision about the publication and notification of relevant applications, determinations made in relation to them, and in relation to the publication and notification of a decision to modify a heat network consent under section 26(2)(b).
86.Regulations may also make provision regarding the consideration that the appropriate consent authority must give, before determining relevant applications or deciding whether to modify a heat network consent under section 26(2)(b), to the likely effect of the construction or the operation of the heat network concerned on the environment generally and, in particular, in contributing to the reduction in greenhouse gas emissions, and in contributing to meeting the fuel poverty targets (subsection (2)).
87.Subsection (3) requires the Scottish Ministers to consult local authorities, the Scottish Fuel Poverty Advisory Panel, and any other persons they consider appropriate, prior to making regulations under subsection (1)
Section 36: Applications and decisions under Part 2 where there is more than one appropriate consent authority
88.Section 36 enables the Scottish Ministers to make provision about how applications and decisions are to be made under Part 2, in the event that there is more than one appropriate consent authority in relation to an application or decision. Subsection (2) enables such regulations to modify the Act and any regulations made under it.
Enforcement of requirement for heat network consent
Section 37: Meaning of “enforcement authority”
89.This section defines “enforcement authority” as the Scottish Ministers or such other person as the Scottish Ministers designate by regulations.
Section 38: Power to require information about activities on land
90.If it appears to the enforcement authority that a heat network is being, or has been constructed or operated on land without a heat network consent, or there has been a failure to comply with a condition or limitation of a consent, the enforcement authority may issue a contravention notice to the owner or occupier of the land or to other specified persons (subsections (1) and (2)).
91.A contravention notice may require the person to provide information in relation to operations or activities being carried out on the land, the use of the land and any matter relating to conditions to which a heat network consent is subject (subsection (3)).
Section 39: Enforcement notice
92.Subsection (1) specifies that where there is a requirement for a heat network consent (see section 18(1)) and it appears to the enforcement authority that the heat network is being (or has been) constructed or operated without a heat network consent, the enforcement authority may issue an enforcement notice. If the heat network is being (or has been) constructed or operated by a person on their own behalf without the person holding a heat network consent, the notice may be given to that person. If the heat network is being (or has been) constructed or operated by a person on behalf of another person without the other person holding a heat network consent, the notice may be given to either of those persons, that is, the principal or the contractor.
93.Subsection (2) also allows the enforcement authority to issue an enforcement notice to a person holding a heat network consent where it is believed that a condition or limitation of the consent is not being complied with.
94.An enforcement notice must specify the date on which it is to take effect (being not less than 28 days after the date on which the notice is given), set out the reasons why it has been given, and specify the steps the person is required to take and/or the activities the enforcement authority requires to cease in order to achieve (wholly or partly) either of the purposes mentioned in subsection (5) (subsections (3) and (4)). Subsection (5) lists the purposes referred to in subsection (4), namely the person’s compliance with section 18(1) or where the person’s failure to comply with section 18(1) has affected the condition of any land, the restoration of that land. The enforcement notice may in particular require the alteration or removal of buildings or works, the carrying out of building or other operations, or prohibit certain activities (subsection (6)). It should specify the period for compliance and may require different steps to be taken over different periods or different activities that are required to cease (subsection (7)). Subsection (8) defines “enforcement notice”.
Section 40: Withdrawal or variation of enforcement notice
95.This section makes provision for the enforcement authority to withdraw an enforcement notice, or waive or relax any requirement of such a notice, whether or not the notice has taken effect (subsections (1) and (2)). If the enforcement authority decides to withdraw, waive or relax a requirement of notice, it must immediately inform each person to whom notice was given (subsection (3)). The withdrawal of an enforcement notice will not prevent the authority from issuing another one (subsection (4)).
Section 41: Appeals against enforcement notice
96.Section 41 allows the Scottish Ministers by regulations to make provision for or about appeals against enforcement notices. The regulations may include provision on those matters listed in subsection (2). Regulations made under this section may modify any enactment (subsection (3)).
Section 42: Offence of failing to comply with enforcement notice
97.Failure to comply with an enforcement notice within the period for compliance is an offence (subsection (1)). A person who commits an offence under subsection (1) can be prosecuted either on summary complaint or on indictment and is liable to a fine, which on summary conviction may not exceed the statutory maximum (£10,000). However, it is a defence for a person charged with such an offence to show that they did everything they could reasonably be expected to do to comply with the notice or they had a reasonable excuse for failing to ensure that the step concerned was taken or for failing to ensure the cessation of the carrying on the activity concerned (subsection (3)). The period for compliance is the period specified in the notice in accordance with section 39(7), or such other extended period as the enforcement authority may allow (subsection (4)).
Section 43: Execution and cost of works required by enforcement notice
98.If at any time after the end of a period for compliance of an enforcement notice, any step required by the notice has not been taken, the enforcement authority may enter the land to take the necessary steps and may recover the expenses reasonably incurred by them in doing so from the person to whom the notice was given (subsections (1) and (2)). Subsection (3) provides that any expenses recovered under subsection (2) may include appropriate administrative expenses.
99.When taking steps under subsection (2), the enforcement authority may sell any materials removed from the land unless they are claimed by the owner within 3 days of removal (subsection (4)). The enforcement authority must pay the proceeds of any sale, less recoverable expenses, to the owner (subsection (5)).
100.Subsection (6) creates an offence if a person, without reasonable excuse, intentionally obstructs the enforcement authority in exercising its powers under subsection (2). A person who commits such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (subsection (7)).
Heat network consent and planning permission
Section 44: Deemed planning permission on granting or modifying heat network consent
101.Section 44 of the Act amends section 57 of the Town and Country Planning (Scotland) Act 1997 and inserts new subsections (2C) and (2D). Subsection (2C) provides that on granting or modifying a heat network consent under section 23(1)(a), 26(1) or on appeal under section 31(2) of the Heat Networks (Scotland) Act 2021, the Scottish Ministers may give a direction for planning permission to be deemed to have been granted, subject to conditions (if any) to be specified in the direction. Planning permission will be granted under subsection (2C) for so much of the operation or change of use to which the consent relates as constitutes development and for any development ancillary to the operation or change of use.
102.Subsection (2D) inserted into section 57 of the Town and Country Planning (Scotland) Act 1997 provides that on modifying a heat network consent under section 26(1) or on appeal under section 31(2) of the Act, the Scottish Ministers may give directions (instead of, or as well as a direction under subsection (2C)) to vary an existing planning permission deemed to be granted under subsection (2C), to vary any conditions attached to an existing planning permission deemed to be granted, and to direct that any consent, agreement or approval given in respect of a condition of a deemed planning permission is to be treated as given in respect of a condition of the new or varied deemed planning permission.
Section 45: Combining applications to local authorities for heat network consent and planning permission
103.Section 45 applies in the event that a person is applying to develop a heat network and must make an application for planning permission and heat network consent to a local authority (in its capacity as a planning authority and appropriate consent authority, respectively).
104.Subsection (3) enables the Scottish Ministers, by regulations, to disapply procedural provisions of the Town and Country Planning (Scotland) Act 1997, and modify the provisions of that Act as they relate to heat network consent applications.
