The emergence of environmental concerns: Hydroelectric schemes in Scotland

Journal of Environmental Law

Volumn 17, Issue 3, 2005, Pages 361-382

  Reid, Colin T ^a   Pillai, Aylwin ^b   Black, Andrew R ^a  

^a UNIVERSITY OF DUNDEE   (United Kingdom)

^b UNIVERSITY OF ABERDEEN   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL IMPACT; ENVIRONMENTAL LEGISLATION; HYDROELECTRIC POWER;

EURASIA; EUROPE; SCOTLAND; UNITED KINGDOM; WESTERN EUROPE;

EID: 30444433105     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqi030     Document Type: Review

References (220)

1. Department of Trade and Industry, The Energy White Paper: Our Energy Future - Creating A Low Carbon Economy, Cm 5761 (2003) para 1.10, available at http://www.dti.gov.uk/energy/whitepaper/ourenergyfuture.pdf.
2. The Electricity Act 1989, section 32 (8) (substituted by the Utilities Act 2000, section 62), defines renewable sources as 'sources of energy other than fossil fuel or nuclear fuel...'
3. The Shieldaig application (see n 39 infra).
4. Directive 2000/60/EC. The Controlled Activities (Scotland) Regulations due in mid-2005 to implement much of the Directive amount to a complete rewriting of the law in this area.
5. Scottish Executive, National Planning Policy Guideline 6: Renewable Energy Developments (revised 2000) para 13.
6. Scottish Executive/Garrad Hassan & Partners Ltd, Scotland's Renewable Resource 2001 (Executive Summary and two volumes) - available in three files at http://www.scotland.gov.uk/library5/environment/SRS2001 ExecSumm.pdf, http://www.scotland.gov.uk/library5/environment/ SRS2001vol1.pdf and http://www.scotland.gov.uk/library5/environment/ SRS2001vol2.pdf (accessed 9 May 2005).
7. Ibid, Vol 1, ch 7;
8. Royal Commission on Environmental Pollution: 22nd Report, Energy - The Changing Climate, Cm 4749 (2000) at 129.
9. In April 2005, there were sixteen applications for hydroelectric schemes before the Scottish Ministers [ten at pre-environmental impact assessment (EIA) stage (see n 148 infra) and six more advanced]. See the list available from the Scottish Executive at http://www.scotland.gov.uk/ Topics/Business-Industry/infrastructure/19185/19102 (accessed 16 May 2005).
10. P.A. Strachan and D. Lal, 'Wind Energy Policy, Planning and Management Practice in the UK: Hot Air or a Gathering Storm?', 38 Regional Studies (2004) 551-571.
11. For example, at present, several lochs are managed with a regard for habitat conservation that is not required by the authorisation for the scheme or any other legal provision.
12. In international terms, all of the Scottish schemes are small, with river basins rarely exceeding 1,000 square kilometres in comparison with hundreds of thousands of square kilometres affected by schemes operating on a continental basis.
13. In two cases (Ben Cruachan, part of the Awe scheme, and Foyers), pumped storage systems are used, whereby water flows out of an upper reservoir to generate electricity and is pumped back from a lower reservoir making use of cheap off-peak power to replenish the supply for future use. This makes economic sense since hydroelectric generation can be switched on and off very quickly to respond to the periods of high demand (and therefore high prices) during the day, whereas other generating systems have to keep operating at a more steady load providing unused generating capacity (and therefore cheap electricity) at periods of low public demand, e.g. overnight.
14. B. Sadler, I. Verocai and F. Vanclay, Environmental and Social Impact Assessment for Large Dams, World Commission on Dams Thematic Review Vol 2, Institutional Processes (World Commission on Dams, 2000) at 11.
15. The environmental impacts may, of course, have a more positive side through the creation of new habitats, e.g. at Dunalastair Reservoir, part of the Tummel Valley scheme where the management regime has encouraged habitat that is now legally protected as a Site of Special Scientific Interest.
16. For example, stretches of the River Garry. See G. Struthers, Hydro-electric Development in Scotland and its Effect on Fish (Scottish Hydro-Electric, Pitlochry, 1996) 13-14.
17. Tay District Salmon Fisheries Board, 2000 Annual Report (Tay District Salmon Fisheries Board, 2001).
18. Both of these and oxygen balance and salinity are included in the physicochemical quality elements to be taken into account in determining the good status or potential of waters under the Water Framework Directive (see supra n 4) Annex V.
19. Struthers, n 15, Appendix iii.
20. P. Payne, The Hydro (Aberdeen University Press, 1988) at 5.
21. Payne (ibid) provides an admirable account of the development of hydroelectricity in Scotland during the first two of these.
22. Schemes for Kinlochleven, Lochaber, Ericht/Grampian and Galloway, each involving several Acts as the schemes were amended and expanded; see C.T. Reid, 'Things were Simpler Then - Environmental Controls on Early Hydro-Electric Dams in Scotland', 13 Water Law (2002) 382.
23. In some circumstances, they remain the appropriate means of approving developments, e.g. Comhairle Nan Eilean Siar (Eriskay Causeway) Order Confirmation Act 2000.
24. The procedure was governed at the start of the twentieth century by the Private Legislation Procedure (Scotland) Act 1899, replaced for the rest of the period under consideration by the Private Legislation Procedure (Scotland) Act 1936.
25. The Lochaber Water Power Act 1921 has 112 sections.
26. Additional powers such as to provide water supply (in the locality or even in bulk at a greater distance) could also be included, e.g. Loch Leven Water Power Act 1901, sections 48 and 53.
27. The Committee was established to investigate 'the practicability and desirability of further developments in the use of water power in Scotland for the generation of electricity'; Report of the Committee on Hydro-Electric Development in Scotland, Cmd 6406 (1942) para 1.
28. Ibid, para 63.
29. Hydro-Electric Development (Scotland) Act 1943, section 2 (3).
30. A.F. Phillips, 'Electricity Generation, Law, Economics and the Environment: A Study of a Phenomenon', 9 Utilities Law Review (1998) 129 at 130.
31. Electricity Act 1947.
32. Formally constituted under the Electricity Reorganisation (Scotland) Act 1954; the South of Scotland Electricity Board became responsible for the Galloway scheme, but there were no new developments in its area. The South of Scotland Electricity Order Confirmation Act 1956 repealed and replaced the Galloway Water Power Act 1929 and the Lanarkshire Hydro-Electric Power Act 1924.
33. Hydro-Electric Development (Scotland) Act 1943, section 5. Details of the schemes are to be found in the constructional schemes officially referred to in the form North of Scotland Hydro-Electric Board, Constructional Scheme No 40, Foyers Project (Operative On and After 1 April 1969) (North of Scotland Hydro-Electric Board, Edinburgh, 1969). [Here referred to in the shorter form: Foyers, Constructional Scheme No 40 (1969).]
34. Ibid, section 9. In practice, differences of opinion were often resolved by negotiation, but on occasion the Secretary of State supported the Hydro Board when it had decided not to give effect to a recommendation from a Committee; e.g. Tummel-Garry, Constructional Scheme No 2 (1945), where the Amenity Committee recommended that the Pitlochry element should be omitted from the scheme and the Fisheries Committee recommended that the diversion of the waters of the River Garry should be omitted from the scheme. Both recommendations were rejected by the Hydro Board, and the Secretary of State supported the Board's decision. See Scottish Home Department, North of Scotland Hydro-Electric Board, Constructional Scheme No 2, Explanatory Memorandum, Cmnd 6660 (1945) para 5.
35. For further comment, see Phillips n 29 supra at 133-134.
36. This represents the main period of hydro construction under the Board. The last major hydroscheme to be constructed was Foyers, Constructional Scheme No 40 (1969), which became operational in 1974.
37. Since some of the works authorised were never constructed and constructional schemes were also used for access roads, transmission lines as well as amendments to existing schemes, different totals can be achieved depending on the categorisation system used.
38. This takes legislative form in the Electricity Act 1989, section 32 (as substituted by the Utilities Act 2000 section 62) and the Renewables Obligation (Scotland) Order 2004, SSI 2004 No 170.
39. Five schemes have been approved since 2002 and there are several more under consideration (see supra n 8).
40. All electricity-generating stations with generating capacity of over 50 megawatts require ministerial consent under the Electricity Act 1989, section 36. However, that limit was varied by the Electricity Act 1989 (Requirement of Consent for Hydro-Electric Generating Stations) (Scotland) Order 1990, SI 1990 No 392, which requires hydroelectric generating stations with a capacity of over 1 megawatt to seek ministerial consent under section 36. Small-scale hydrogenerating schemes of under 1 megawatt must seek permission from the planning authority under the Town and Country Planning (Scotland) Act 1997.
41. The most recent schemes have been approved (Braevallich, Garrogie, Kingairloch and Fasnakyle) and refused (Shieldaig) without enquiries being held. See Ministerial consents for Braevallich in Argyll and Bute, 26 March 2003;
42. Garrogie in Highland, 26 June 2003;
43. Kingairloch in Highland, 26 March 2003;
44. Fashakyle, Cannich, by Beauly, 1 April, 2004;
45. and see refusal of application for consent for Shieldaig/Slattadale, Wester Ross, 16 March 2004. All available at http://www.scotland.gov.uk/ Topics/Business-Industry/infrastructure/19185/19102 (accessed 16 May 2005).
46. Electricity Act 1989, section 36 and Schedule 8.
47. Town and Country Planning (Scotland) Act 1997, section 57(2).
48. See supra n 38.
49. Under the Scotland Act 1998, responsibility for energy including the generation of electricity is a 'reserved matter' and therefore not included in the powers transferred to the Scottish Parliament and the Scottish Ministers (Scotland Act 1998, Schedule 5 Part II section D1), but power to deal with individual cases has been transferred by 'executive devolution' (ibid, section 63; Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999, SI 1999 No 1750, Article 2 and Schedule 1).
50. See C.T. Reid, 'Devolution and the Environment' in A. Ross (ed.), Environment and Regulation (Hume Papers on Public Policy, Vol 8 No 2) (Edinburgh University Press, 2000) 101 at 104.
51. Directive 85/337/EEC as amended by Directive 97/11/EC.
52. SSI 2000 No 320.
53. Hydro-Electric Development (Scotland) Act 1943, section 9(1);
54. applied to the South of Scotland Electricity Board by Schedule 1 to the Electricity Reorganisation (Scotland) Act 1954.
55. Electricity Act 1989, Schedule 9 para 3(1); this refers to preserving natural beauty, conserving flora, fauna and geological and physiographical features of special interest and protecting sites, buildings and objects of architectural, historic or archaeological interest and requires operators to do what they reasonably can to mitigate effects on these.
56. Hydro-Electric Development (Scotland) Act 1943, section 2(1).
57. Electricity Act 1989, section 3A(1) (added by the Utilities Act 2000 section 13);
58. the secondary role of the environment is shown in section 3A(5) where there is an obligation 'to carry out ... functions ... in the manner ... best calculated' to promote efficiency and economy of supply and other goals, but only to 'have regard to' the effect on the environment.
59. 'Although these general duties can be so vague as to be meaningless ... they do provide certain formal requirements which can have a positive longer term effect upon the policy- and rule-making process'. S. Bell and D. McGillivray, Environmental Law (5th edn) (Blackstone Press, 2000) at 155.
60. Loch Leven Water Power Act 1901.
61. Lochaber Water Power Act 1921.
62. Ibid, section 68(7) and (8).
63. Ibid, section 68(1).
64. For example, ibid, section 68(6), again for the benefit of a single proprietor.
65. Grampian Electricity Supply Act 1922, section 26 works 2, 3, 7, 13, 14, 16, 24 and 28. The complete prohibition on altering the level of a crucial loch had been a major factor in preventing an earlier proposal from being financially viable (see Payne n 19 supra at 15).
66. Ibid.
67. See Payne n 19 supra at 17-18.
68. Grampian Electricity Supply Act 1922, sections 45 and 46.
69. Ibid, section 46(2). The extra flow is widely accepted as encouraging salmon to move upriver towards their spawning grounds. On one river, there was a further provision that during the Lammas spate the natural conditions of the flow should 'so far as reasonably possible prevail' (ibid, section 46(5)).
70. Galloway Water Power Act 1929, section 68(1) (b). The Grampian scheme had already included provision for the operator and the fishery board to agree to vary the water flow if it was 'in excess of the amount required or insufficient for the preservation of the fishery interests in the river' (Grampian Electricity Supply Act 1922, section 46(4)). The status and role of the fisheries board is discussed in the section on fisheries, below (section 4.3).
71. Loch Leven Water Power Act 1901, section 25;
72. Ericht Water and Electric Power Act 1912, section 24;
73. Lochaber Water Power Act 1921, section 81;
74. Ayr Burgh (Electricity) Act 1922, section 38;
75. Grampian Electricity Supply Act 1922, section 42;
76. Galloway Water Power Act 1929, section 70.
77. Awe, Constructional Scheme No 28 (1958), section 6(i);
78. Mucomir, Constructional Scheme No 26 (1955), section 6(1).
79. In relation to natural spates, in one case, these are expressly to be counted towards the total number of freshets required (Moriston Amendments, Constructional Scheme No 23A (1952), section 6(1) (iii) (c)), while in others there is a general provision that allowance should be made for natural spates as agreed with the fisheries board (e.g. Orrin, Constructional Scheme No 29 (1954), section 6(1)(d);
80. Loch Shin, Constructional Scheme No 32 (953), section 6(1) (d)).
81. For example, Glen Shira, Constructional Scheme No 12 (1947), section 5(i)(b);
82. Cowal, Constructional Scheme No 4 (1947), section 6(1)-(2).
83. For example, Glen Shira, Constructional Scheme No 12 (1947), section 5(i)(b);
84. Tummel-Garry, Constructional Scheme 2 (1945), sections 6(1)(ii)(b) and 6(1)(iii)(b).
85. See supra n 15.
86. See below (section 4.4).
87. Cowal, Constructional Scheme No 4 (1947), section 6(3).
88. For example, Loch Morar and Tummel-Garry. Beyond the annual figures, the release of water was to be at such times and in such quantities as agreed with the Fisheries Board. See Sloy-Morar-Lochalsh, Constructional Scheme No 1 (1945), section 6(1), and Tummel-Garry (see supra n 66) section 6(1).
89. See below (section 5.1).
90. For example, without explicitly mentioning measuring gauges, the Garry scheme and Moriston Amendments project provide that the compensation water must reach a specified flow at a particular point in the river ('immediately below the generating station'): Garry, Constructional Scheme No 24, section 6(1) (c) and Moriston Amendments, Constructional Scheme No 23A, section 6(1)(iv).
91. Grampian Electricity Supply Act 1922, sections 78(15) and 84;
92. Galloway Water Power Act 1929, sections 74 and 78(1).
93. Lochaber Water Power Act 1921, sections 68(3) and 69(4);
94. Ayr Burgh(Electricity) Act 1922, section 56(5);
95. Grampian Electricity Supply Act 1922, section 78(16);
96. Galloway Water Power Act 1929, section 74(19).
97. Indeed 'promot[ing] sustainable flood management' is a duty of bodies designated under the Water Environment and Water Services (Scotland) Act 2003, section 2(4).
98. Lochaber Water Power Act 1921, sections 72(2), 74(2), 77(2) and 78(2);
99. Grampian Electricity Supply Act 1922, sections 78(13) and 82;
100. Galloway Water Power Act 1929, section 74(16);
101. Sloy-Morar-Lochalsh, Constructional Scheme No 1 (1945), section 18;
102. Cowal, Constructional Scheme No 4 (1947), section 19;
103. Braevallich (see supra n 39) para 7.13.
104. Lochaber Water Power Act 1921, section 73.
105. Braevallich (n 39 supra) para 7.13.
106. Guaranteed flows were also provided for the use of rivers as the means of sewage disposal, with an obligation on the operators to provide alternative means of disposal, if the existing mode became objectionable because of the works and alterations to the flow (Lochaber Water Power Act 1921, section 75(1);
107. Grampian Electricity Supply Act 1922, section 78(14);
108. Galloway Water Power Act 1929, section 74(17)).
109. In relation to water-driven machinery, one Act required that if as a result of the dam and related works the power utilised from one river was reduced, then the operators were not only to install the electrical equipment to provide an alternative source of power, pay a reasonable sum for its maintenance and provide appropriate advice but also to supply sufficient electricity free of cost so that the combined total of electrical and water power matched the previous uptake of power from the river (Galloway Water Power Act 1929, section 79). Other matters covered included a provision that where any ford or other river crossing was to be rendered unusable, an alternative was to be provided in advance (Grampian Electricity Supply Act 1922, section 78(17)).
110. Flood Prevention (Scotland) Act 1961.
111. Lochaber Water Power Act 1921, section 55(1);
112. Grampian Electricity Supply Act 1922, section 78(12).
113. Ayr Burgh (Electricity) Act 1922, section 54(14).
114. For example, Garrogie approval (see supra n 39) para 7.3
115. Which requires the construction plans to include a commitment to incorporate the Scottish Environment Protection Agency Pollution Prevention Guidelines. For the guidelines, see http://www.sepa.org.uk/ guidance/ppg (accessed 22 July 2004).
116. For example, the discussion of the development of the Galloway schemes in G. Hill, Tunnel and Dam (South of Scotland Electricity Board, Glasgow, 1984) at 31.
117. See Struthers n 15 supra and Scottish and Southern Energy (SSE), Hydro Generation Fisheries Review 1997-2001 (SSE, 2001).
118. For example, Lochaber Water Power Act 1921, section 68.
119. For example, the Galloway Water Power Act 1929, section 80, provides compensation provision for damage sustained to salmon fishing rights for a list of twenty private proprietors; similar provision for Crown rights appears in the Lochaber Water Power Act 1921, section 109, and the Galloway Water Power Act 1929, section 81.
120. Salmon Act 1986
121. District Salmon Fisheries Board Order 1999, SI 1999 No 1111;
122. see G.W.S. Barry, 'Fisheries' in T.B. Smith and R. Black (eds), The Laws of Scotland: Stair Memorial Encyclopaedia (Law Society of Scotland/ Butterworths, 1990) Vol 11, paras 31-39.
123. For example, Lochaber Water Power Act 1921 sections 68(6), (9), 69(5), 70(4) and 80.
124. Ibid, section 55.
125. Ibid, section 55(2).
126. See supra n 59.
127. Grampian Electricity Supply Act 1922, section 46(7) (a). The fisheries board was also entitled to compensation if the correct quantities of water flow were not provided because of the operator's neglect of the measuring gauges: Section 46(7) (b).
128. Ibid, section 46(8). This figure equates to over £125,000 at current prices (calculation based on Inflation: The Value of the Pound 1750-1998, House of Commons Research Paper 99/20).
129. Gratings to stop the movement of fish, e.g. to avoid areas of danger to them.
130. For example, Galloway Water Power Act 1929, section 72(1);
131. Lochaber Water Power Act 1921, section 55(2);
132. Grampian Electricity Supply Act 1922, section 46(3).
133. For example, Glascarnoch-Luichart-Torr Achilty, Constructional Scheme No 16 (1949), section 7;
134. Moriston Amendments, Constructional Scheme No 23A (1952), section 7;
135. Garry, Constructional Scheme No 24 (1949), section 7(a).
136. Hydro-Electric Development (Scotland) Act 1943, section 9.
137. See supra n 33.
138. Electricity Act 1989, section 38 and Schedule 9 para 5.
139. Braevallich (see supra n 39) para 7.4.
140. Garrogie (see supra n 39) para 7.16
141. Garrogie (see supra n 39) para 7.16
142. Kingairloch (see supra n 39) para 3.6.
143. Kingairloch (see supra n 39) paras 3.3, 3.4 and 3.6
144. Braevallich (see supra n 39) para 7.6.
145. For example, the requirements for the benefit of one proprietor that during construction, spoil from the workings was not to be deposited in sight of her house and that spoil or debris was to be left in a manner that was not unsightly (Ayr Burgh (Electricity) Act 1922, section 54(12)).
146. Lochaber Water Power Act 1921, section 63(1)
147. Ayr Burgh (Electricity) Act 1922, section 37(1);
148. Grampian Electricity Supply Act 1922, section 27
149. Galloway Water Power Act 1929, section 73(1).
150. For example, National Parks and Access to the Countryside Act 1949, section 114(2)
151. Countryside (Scotland) Act 1967, section 78(2).
152. For example, Lochaber Water Power Act 1921, section 63(1).
153. Ibid, section 63(2)
154. Galloway Water Power Act 1929, section 73(7).
155. Galloway Water Power Act 1929, section 73 (2)-(4).
156. The relative weight in the formal procedures under the 1943 Act can perhaps be illustrated by the report of the public enquiry in 1964 into two proposed schemes. This spends five paragraphs on amenity, purely a matter of visual amenity and convenience for deerstalkers and hill walkers, as opposed to eighteen on fisheries (exclusively salmon and sea trout) and over eighty on economic considerations, with no regard paid to other environmental concerns; Report of the Public Inquiry into the North of Scotland Hydro-Electric Board's Constructional Scheme No 39 (Fada/Fionn Project) and Constructional Scheme No 38 (Laidon Project) (1965).
157. See below (section 5.3).
158. Notably, the Birds and the Habitats and Species Directives (79/409/EEC and 92/43/EEC).
159. Braevallich approval (see supra n 39) paras 7.7-7.10.
160. Garrogie approval (see supra n 39) paras 7.12-7.17.
161. The statutory nature conservation body (Natural Heritage (Scotland) Act 1991 Part I).
162. Garrogie approval (see supra n 39) paras 7.4-7.5.
163. Kingairloch approval (see supra n 39) paras 7.4-7.6, 7.8-7.9.
164. Shieldaig refusal (see supra n 39). For a fuller discussion of this case, see A.L. Pillai, C.T. Reid and A.R. Black, 'Reconciling Renewable Energy and the Local Impacts of Hydro-Electric Development', 7 Env L Rev (2005) 110.
165. Tummel-Garry, Constructional Scheme No 2 (1945) and amendments.
166. Storr Lochs, Constructional Scheme No 13 (1947).
167. For example, in the Murray-Darling River Basin; see http://archive.riverfestival.com.au/2001/symposium_papers/GOSSKevin.asp (accessed 9 May 2005).
168. Retrofitting is considered much more expensive than making the appropriate provisions at the time of design and construction but nevertheless has been considered as awareness of so-called cold water pollution is raised, in states including Victoria, Tasmania and New South Wales, e.g. http://www.atse.org.au/index.php?sectionid=288 (accessed 9 May 2005).
169. See A.R. Black et al. 'Case study project on Heavily Modified Waters in Scotland - Case Study on the River Tummel', Scotland and Northern Ireland Forum For Environmental Research (2002) 102-113.
170. Landscape issues were not wholly absent in the refusal of some schemes both before and after the 1943 Act.
171. Loch Leven Water Power Act 1901, section 22(3).
172. Ayr Burgh (Electricity) Act 1922, sections 54(10) and 55(6).
173. Braevallich approval, para 7.12, Garrogie approval, para 7.11, and Kingairloch approval, para 7.7: See supra n 39.
174. Hydro-Electric Development (Scotland) Act 1943, section 9(1).
175. Electricity Act 1989, Schedule 9 para 3(1).
176. T. Prosser, Law and the Regulators (Clarendon Press, 1997) at 1.
177. S. Bell and D. McGillivray, Environmental Law (5th edn) (Blackstone Press, 2000) 215-225.
178. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) Cm 4736.
179. Private Legislation Procedure (Scotland) Act 1899, section 6.
180. Under the 1943 Act (section 54)), a public enquiry was mandatory if there were any objections; under the 1989 Act (Schedule 8 pass 2-3), an enquiry is mandatory if the relevant planning authority objects and otherwise is to be held if the minister considers it 'appropriate'.
181. The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000, SSI 2000 No 320, reg 9.
182. The Kingairloch approval (para 7.3; see supra n 39) introduces an innovation in local participation in the form of a Local Liaison Group to promote effective communication on and resolution of issues such as amenity, traffic safety and the protection of nearby proprietors' enjoyment of their property.
183. If not always easily obtainable since few libraries, even academic ones, maintain full sets.
184. Statutory Instruments Regulations 1947, SI 1948 No 1, reg 5, providing an exemption from section 2 of the Statutory Instruments Act 1946.
185. Recent decisions are available at http://www.scotland.gov.uk/Topics/ Business-Industry/infrastructure/19185/19102 (accessed 16 May 2005). The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000, SSI 2000 No 320, reg 10(3), provides that Scottish Ministers must issue a press notice and send a copy of the decision to the relevant planning authority.
186. Since the varying flow levels are also of interest to other river users, e.g. canoeists, there have been requests that the scheme of releases should be made public, but this has not been done. Such publication may be seen to encourage or increase the success of poachers and therefore would be a cause for concern for fisheries board.
187. The same position is in part repeated in the most recent authorisations, where various details require further approval by the planning authority or Scottish Natural Heritage, but these are bodies more used to operating in the public spotlight than the fisheries board.
188. Environmental Information (Scotland) Regulations 2004, SSI 2004 No 520.
189. A. Ross and J. Rowan-Robinson, 'Behind Closed Doors: The use of Agreements in the UK to Protect the Environment', 1 Env L Rev (1999) 82.
190. Since it is only certain specific functions under the Electricity Act 1989 that have been transferred to the Scottish Ministers, whereas electricity generally is a reserved matter (see supra n 43), it appears that although the approval of new schemes is in the hands of the Scottish Ministers, any action in relation to schemes approved under the 1943 Act must remain the responsibility of the Secretary of State as a member of the UK government.
191. See R.W. Herschy, Hydrometry: Principles and Practices (2nd edn) (Wiley, 1999).
192. Braevallich approval (see supra n 39) para 7.6;
193. Garrogie approval (see supra n 39) para 7.6.
194. Directive 85/337/EEC, amended by Directive 97/11/EC.
195. The relevant Statutory Instruments for hydroelectric developments in Scotland were the Environmental Assessment (Scotland) Regulations 1988 (SI 1988 No 1221), as amended by the Electricity Act 1989 (Consequential Modification of Subordinate Legislation) Order 1990 (SI 1990 No 526) and the Environmental Impact Assessment (Scotland) Regulations 1999 (SSI 1999 No 1), which revoked and re-enacted the 1988 Regulations with changes made by Directive 97/11/EC (above).
196. Hydroelectric operators can apply to Scottish Ministers for a scoping opinion under reg 7 of the Regulations (SSI 2000 No 320) before the formal application procedure. The scoping opinion outlines the issues to be addressed in the environmental statement. See supra n 8.
197. On the relationship between the procedural and substantive impact of environmental impact assessment, see J. Holder, Environmental Assessment: The Regulation of Decision-Making (Oxford University Press, 2004) 238-240.
198. Shieldaig decision (see supra n 39) paras 26-33.
199. Following the Town and Country Planning (Minerals) Act 1981.
200. See J. Rowan-Robinson et al., Scottish Planning Law and Procedure (W. Green, 2001) 704-723.
201. For Braevallich 25 years (see supra n 39, para 3.1)
202. and for Kingairloch 40 years (see supra n 39, para 3.1).
203. Garrogie approval (see supra n 39) para 7.7.
204. For Garrogie 12 months (see supra n 39, para 3.4) and for Kingairloch 18 months (see supra n 39, para 7.10).
205. Cf the provisions on review and reinstatement of sites under the Pollution Prevention and Control (Scotland) Regulations 2000, SSI 2000 No 323.
206. See Prosser supra n 129 at 40-42;
207. J. McEldowney, Public Law (3rd edn). (Sweet & Maxwell, 2002) at 389-390;
208. C. Harlow and R. Rawlings, Law and Administration (2nd edn) (Butterworths, 1997) at 133-138.
209. Hydro-Electric Development (Scotland) Act 1943, section 9(1).
210. Ibid, section 2(1).
211. European protected species under the Habitats and Species Directive (92/ 43/EEC), implemented by the Habitats (Nature Conservation etc.) Regulations 1994, SI 1994 No 2716, and birds protected under the Birds Directive (79/409/EEC).
212. See supra n 39.
213. For a full discussion, see Pillai, Reid and Black supra n 117. One interesting feature to note is the application in that case of the precautionary principle in weighing the impacts on the environment.
214. Energy - The Changing Climate (see supra n 7);
215. Our Energy Future (see supra n 1).
216. Directive 2000/60/EC.
217. Ibid, Article 4(3).
218. Ibid, Article 4(1) (a)(iii).
219. Ibid, Annex V.
220. For example, the conflicting considerations in para 16 of National Planning Policy Guideline 6 (see supra n 5).