Recent press reports that it is necessary to obtain an electricity generation licence from OFGEM in respect of wind turbines before planning consent can be given are misleading.

The ruling in September 2013 by a Court of Session judge which gave rise to the reports applies only to large scale developments of 50 MW or more (typically 15-25 turbines) and will not therefore affect the majority of wind developments in Scotland.

Lady Clark of Calton's judgment highlighted difficulties in interpretation of the law, with the Electricity Act 1989 apparently allowing any person to apply for consent to construct and operate a generating station but with subsequent provisions of the Act stating that only licence holders would be bound to adhere to environmental safeguards. Either the Act was applying a double standard, with different levels of control being applied depending on whether a licence holder was involved or not, or the Act contained a gap. Lady Clark took the latter approach and concluded that only a licence holder can apply for consent to construct and operate a generating station. As a result, the 103 wind turbine development proposed for Shetland by Viking Energy (who do not hold such a licence) has been put on hold.

The ruling has been appealed by the Scottish Government and a hearing has been fixed for February/March 2014.. Donald Trump has mounted a similar challenge to the Scottish Government's decision to approve an offshore windfarm near Aberdeen and is seeking to joint the Shetland case in alliance with Sustainable Shetland. There may be further challenges to consents for other windfarms above the 50MW threshold, however these are likely to be focused on windfarms where there is a separation between licence holder and operating company which is most likely where joint venture or partnership structures have been used, as was the case with the Viking proposal (which involved a partnership).

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