MOD approach to safeguarding the Eskdalemuir Seismological Array
ReadConsultation description
1. Introduction
1.1
The Ministry of Defence (“MOD”) consulted from 27 September 2024 to 20 December 2024 on its proposals regarding its approach to safeguarding the fullEskdalemuir outcomeSeismological Array (“the Array”) in respect of windfarm development in the Eskdalemuir Consultation Zone (“the Consultation Zone”). The MOD’s consultation document can be found in the first appendix to this document.
1.2
Having carefully considered the consultation responses, the MOD, with effect from 1 February 2026, will adopt the new safeguarding approach as set out in the second appendix to this document.
1.3
This revised safeguarding approach will apply to all pending applications (submitted after 11 January 2018 and until the new safeguarding approach takes effect) and future applications (being applications submitted after the new safeguarding approach takes effect.
1.4
Requests submitted for scoping have not been considered to be applications for consent, whether submitted before or after 11 January 2018. Requests submitted for scoping have been removed from the list which is maintained by the MOD and in respect of which it assesses whether development, cumulatively, results in the Eskdalemuir threshold of 0.336nm being breached. This list, audited as explained in section 2 below, is referred to in this document as “the MOD’s List”. Requests for scoping which have been or are followed by an application for consent will be assessed by the date on which the associated consultation notification for that application was received by the MOD from the consenting authority in accordance with the new approach. Applications which have already been decided by the relevant consenting authorities will be unaffected.
2. Audit of the MOD’s List
2.1.
The MOD explained in its consultation document that it would require to review and validate the baseline list of existing and/or consented wind turbine developments in the Consultation Zone in order to ensure that that list - and the associated calculation of headroom above the Eskdalemuir threshold which is not currently referable to already-consented development - is accurate. The MOD has completed this exercise. The MOD’s audited baseline (i.e. the MOD’s List) can be found in the third appendix to this document.
2.2
Detail
3.2.4.6 It was noted that the MOD’s approach must ensure that it does not unjustly increase risk of outcome
3.2.4.7 One respondent argued that conditions should be imposed only if they make a development acceptable that would otherwise be refused on its merits. Projects, if consented, should maintain their position in the MOD’s List if no headroom is available. As other projects fall away due to refusal, these projects could take up the available headroom, provided they remain extant. Applications could be submitted to extend the implementation period if the developer believes headroom will become available. The decision-maker would then consider any such extension based on the development’s merits and potential to obtain budget. This approach would prevent non-viable consented projects from occupying budget.
3.2.4.8 Concern was expressed about projects which are expected to breach the Eskdalemuir threshold, and that they should not serve to block other applications for development which are made after this date, which could be consented without breaching the Eskdalemuir threshold. The use of suspensive conditions may be appropriate in such circumstances until refinement of the algorithm and any UK Government (Department for Energy Security and Net Zero)/Scottish Government guidance supported by legislative reform (see section 6 below).
3.2.4.9 Reference should also be made to section 3.2.9 below.
3.2.5 Do consultees have any other comment on the definition of applications as set out in the original consultation (i.e. applications for: (a) development; and (b) variation, material or otherwise, modification or amendment of existing consents (including “repowering” applications by way of new application)?
3.2.5.1 Concern was raised about how an application for a “repowering” project will be differentiated from an application for new development. Greater clarity on this issue was thought to be necessary.
3.2.5.2 It was suggested that applications for “repowering” projects should be included in the exceptions listed in section 3.2.3 above.
3.2.5.3 Clarity was sought on the status of sites with existing planning permission but outstanding applications under section 36 of the Electricity Act. The MOD was also asked to clarify that the consenting regime under which the SGV was originally calculated/attributed to a proposed development will not be material when considering modification of an existing consent, specifically what the position will be should a development which benefits from a planning permission be followed by an application under section 36 of the Electricity Act. This is relevant to the MOD’s position when applications for variation, etc of an existing consent are submitted and the variation, etc does not result in an increase of the predicted SGV for the original consent. See section 3.2.3 above.
3.2.6 Do consultees have any comment on the proposal to remove applications from the MOD’s list (and therefore the calculation of cumulative SGV) on final refusal (including the final refusal of any appeal, statutory challenge or Judicial Review or the end of the period within which any such application can be made)? Is this clear, fair and practical?
3.2.6.1 Respondents felt that this was clear and fair in theory, but some expressed concern about the practical implementation of this approach.
3.2.6.2 Some respondents raised doubts over the MOD’s capacity to maintain the accuracy of the MOD’s List, given resource constraints, and one respondent questioned how the MOD would necessarily know that final refusal had occurred. It was suggested that a consultancy could be engaged to regularly update the MOD’s List.
3.2.6.3 One respondent suggested having a timeline within which applications would be removed from the MOD’s List following final refusal, so that delays could be avoided in recalculating SGV for other pending applications.
3.2.6.4 One respondent questioned whether applications should be added to the MOD’s List at all if the projects with which they are concerned would exceed the Eskdalemuir threshold.
3.2.6.5 Reference should also be made to section 3.2.8 below.
3.2.7 Do consultees have any comment on the proposal that re- consultation will be required if any changes to the parameters required to calculate SGV (number of turbines, grid references of each turbine accurate to 1m and any micro-siting allowance, maximum hub height, maximum rotor diameter and maximum rated-power of proposed turbines) were to be proposed during the application process and that, in the event of re-consultation which has the effect of increasing the predicted SGV of the development, the MOD will consider the application anew as if it had been validated on the date of re-consultation and that the MOD will move the application on its list to this new date?
3.2.7.1 Considerable concern was expressed by some respondents in response to this proposal, with concern expressed that it could unfairly penalise certain projects and lead to industry uncertainty, delays, and inhibition of funding.
3.2.7.2 In particular, there were objections to the notion of an application being moved to the end of the MOD’s List due only to a small increase in predicted SGV being required during the application process, especially as this could be as a result of factors outwith the developer’s control, for example a local authority making its support conditional on relocating a turbine to a position that would result in the increase, or a change in the availability of certain makes or models of turbine. It was pointed out that developers often need to amend schemes in scenarios which are not developer-led.
3.2.7.3 It was suggested that, if an amendment to an application leads to an increase in predicted SGV, only the increase should be considered anew: the developer should be able to retain their place on the MOD’s List as regards the original predicted SGV and validation date.
3.2.7.4 It was suggested that there be an exception in the case of an increase to SGV owing to a local authority or consultee making their support conditional on relocating a turbine to a position that results in the increase in predicted SGV.
3.2.7.5 Some respondents indicated that increases in predicted SGV could be a good reason for use of suspensive conditions.
3.2.7.6 One respondent suggested that the materiality of the change should be taken into consideration by the MOD.
3.2.8 Do consultees have any comment on the proposal to remove developments from the MOD’s list if development has not taken place, there is no potential for the consent to be implemented, the consent having expired; or where development has been implemented, the development has been finally decommissioned and any underlying consent has clearly and unambiguously expired.
3.2.8.1 Respondents were generally in agreement with the principle of the proposal. However, several respondents raised concerns about the MOD’s capacity to accurately maintain the MOD’s List. It was said that the MOD must ensure that the removal process is timely and transparent.
3.2.8.2 It was clearly felt that the MOD should have a workable way of ascertaining when a criterion for removal from the MOD’s List has been met.
3.2.8.3 Further, respondents were concerned that developments would be removed from the MOD’s List while an application to vary, amend or modify was still live, if the underlying consent had expired. One respondent suggested exceptions to the proposal to account for the interaction between underlying and variations applications.
3.2.8.4 One respondent wrote that it was not always clear what the date of expiry of consent was, and that the consenting authority and applicant should always be consulted before action was taken to remove a development from the list.
3.2.8.5 The view was expressed that given the importance of repowering, developers should be afforded the opportunity to retain the SGV attributed to their current development prior to decommissioning, and only any additional SGV required should require to be assessed separately.
3.2.9 In order that the MOD can calculate the SGV from proposed developments, it will require certain information to be provided with the application, and that information will need to be captured by way of planning condition or otherwise in any consent. Is the MOD’s proposal clear, fair and practical?
3.2.9.1 This was generally thought to be a reasonable approach. However, there were concerns that it was overly prescriptive, and that the information required by the MOD should be only that which is strictly needed to assess the SGV taken by the proposed development.
3.2.9.2 Some respondents raised concerns about the information required. It was pointed out that maximum hub height, maximum rotor diameter, and maximum rated power are not part of the formal description of development. Maximum rated power was thought to be an inappropriate parameter, given that future technology could produce greater power using the same dimensions and so generate more renewable energy, which it would not make sense to limit. Careful consideration was therefore encouraged as to which parameters should be controlled.
3.2.9.3 It was felt that the method of capturing and providing the information should be flexible, subject to demonstrating SGV compliance.
3.2.9.4 One respondent felt that the MOD should ask for the manufacturer and turbine model used in the proposed development to be provided, so that it could calculate the actual SGV of the project (rather than rely on the predictive model used by the MOD) and discharge any suspensive condition.
3.2.10 Do consultees have anything to add?
3.2.10.1 Respondents had concerns that large developments in close proximity to the array could have a disproportionate effect, potentially exhausting any available headroom, and there was a suggestion that applications be ranked by SGV requirement to help ensure that the maximum number of developments can be built.
3.2.10.2 Transparency regarding how applications are assessed and prioritised was considered to be important. Given the dynamism of the renewables sector, respondents also requested regular updates on available headroom and the MOD’s List to give better visibility about future opportunities and ensure capacity is not reserved for projects that will not proceed.
3.2.10.3 Collaboration between the MOD, developers, and researchers in the renewables sector was encouraged. This could be used to explore advancements in technology such as mitigation techniques and more efficient turbine models which could expand the capacity for development within the Consultation Zone while maintaining the integrity of the Array.
3.2.10.4 One respondent requested that mapping data be provided to local authorities so that it can be used to identify when MOD consultation will be required.
3.2.10.5 Some respondents suggested revisiting the MOD’s resourcing and outsourcing. It was felt that the way in which the Array’s protection is managed presents a barrier to development across a large area, potentially having a detrimental effect on renewable energy targets, and that this justified reconsidering the way in which the MOD is resourced internally, and its ability to outsource work. In particular, a respondent suggested the engagement of external accreditation bodies to monitor and update the MOD’s List.
4. MOD’s response to comments received
4.1. The consultation responses to all the questions have been carefully considered. In light of the comments received, the MOD will adopt the approach as set out in its consultation document, subject to the following adjustments. The new approach is as set out in the second appendix to this document.
4.1.1.Is the MOD’s proposal to consider applications on a first come, first served basis and add applications to its list, used to calculate the cumulative SGV of all such development, according to the date on which the application for consent was formally accepted as valid by the consenting authority, with a consistent approach for all types of application, clearly understandable and fair overall, and is it a practical approach?
4.1.1.1 The MOD has noted the concerns expressed about a date of validation. The MOD had been mindful when it published its consultation document of there being no requirement for formal validation of an application made under the Electricity Act as opposed to the Planning Act.
4.1.1.2 The MOD is also mindful of the consultation, Electricity Infrastructure Consenting in Scotland: consultation document. While it may in due course be appropriate for the MOD to review its approach in light of the outcome of that consultation, the MOD considers it appropriate not to delay in publishing its new approach.
4.1.1.3 The MOD’s interest is in safeguarding the Array. This is achieved through the promulgation of a clear and easily applied safeguarding approach. When it comes to the calculation of cumulative SGV, first come, first served, satisfies those aims.
4.1.1.4 While some consultees expressed a desire for a more dynamic approach to the management of the Eskdalemuir threshold, with a view to optimising renewable energy generation in the consultation zone, the MOD would note that such optimisation is not part of the MOD’s functions and it has no powers in that regard. Nonetheless, the MOD has been working closely with the UK Government (Department for Energy Security and Net Zero), the Scottish Ministers and the Eskdalemuir Working Group (“EWG”), to support the delivery of the policy aim of optimising renewable energy generation in the Consultation Sone, while at all times ensuring the continuing safeguarding of the Array.
4.1.1.5 The MOD will carefully consider any guidance adopted by the UK and Scottish Governments supported by legislative reform. It will consider what changes appropriately should, as a consequence, be considered and, after appropriate further consultation, made to its safeguarding approach. The MOD does not consider it to be necessary or appropriate to await the publication of any new UK and Scottish Government guidance supported by legislative reform before publishing its own safeguarding approach. The MOD requires, in its role as statutory consultee in the consenting process, to consider applications now. And the MOD will still require to apply its safeguarding approach when managing the Eskdalemuir threshold after any UK and Scottish Government guidance supported by legislative reform has been brought into effect so as to ensure that the Eskdalemuir threshold is not breached.
4.1.1.6 As regards the date on which applications (on a first come, first served basis) are added to the MOD’s List, the MOD’s concern is to ensure certainty, and effective administration. An overly complicated arrangement could in itself cause confusion and could risk the safeguarding of the Array. The MOD safeguards the Array by applying its safeguarding approach. The MOD is a statutory consultee in the consenting process. The MOD responds to a consenting authority’s consultation request, confirming whether or not the MOD objects to the application. The MOD will decide whether or not to object by applying its safeguarding approach and noting whether an application, cumulatively with other relevant development, will or will not result in the Eskdalemuir threshold being exceeded.
4.1.1.7 The MOD would be particularly concerned about any suggestion that a decision not to object to an application because the Eskdalemuir threshold would not be breached might subsequently have to be changed to an objection because the position that the application takes in the MOD’s list has to be adjusted. This would be the effect of some of the views expressed during the MOD’s consultation on its new approach. This would not sit easily with the MOD’s role as a statutory consultee, initially having advised that it has no objection, and it is easy to see how, as a consequence of such an approach, the safeguarding or the Array could be prejudiced.
4.1.1.8 The MOD has carefully considered the concerns raised by consultees about the different approaches that consenting authorities take to seeking responses from statutory consultees, specifically that some consenting authorities seek responses much earlier in the process than others. The MOD has also noted the concern that unfairness could be introduced to the process through factors outwith applicants’ control such as case officer workload, work pattern and leave. There are also issues regarding the consenting regime under which an application has been made. The MOD seeks to act fairly, which includes acting consistently. This involves treating all applications in the same way, not just in terms of first come, first served as a principle (drawing no distinction between applications made under the Electricity Act and applications made under the Planning Act), but in terms of the date on which applications are added by the MOD to its list.
4.1.1.9 Having carefully considered the responses that the MOD has received to its consultation exercise, the MOD’s view is that the most straightforward and certain approach is for it to add applications to the MOD’s List in the order in which Defence Infrastructure Organisation - Safeguarding (“DIO Safeguarding”) receives a consultation request by email from a consenting authority. If a consultation request is sent by post, the date of receipt will be the date on which the consultation request is received by DIO Safeguarding at its principal office which is currently at St George’s House, DMS Whittington, Lichfield, Staffordshire, WS14 9PY. This ensures that the MOD is dealing with all applications in a consistent manner. This addresses any concern expressed at consultation about what is meant by an application being treated as valid.
4.1.1.10 As regards the status of pending applications under the new approach (i.e. applications for consent submitted after 11 January 2018), these are included within the MOD’s audited baseline (i.e. the MOD’s List) which can be found in the third appendix to this document. The MOD has applied its new approach to the order that pending applications take in its list.
4.1.2 Do consultees have any comment on the proposal that, in the event of two or more applications sharing the same date on which the applications where formally accepted as valid by the consenting authority/authorities, the application which has the earlier date on which a consultation request was received by the MOD will take priority?
4.1.2.1 Having carefully considered consultee responses, the MOD agrees, especially given that it is to take the approach as set out at section 4.1.1 above, that the probability of two applications being received on the same day should be low.
4.1.2.2 However, for the avoidance of doubt, the MOD has made it clear in its new approach that if more than one consultation request is received on a particular day, the MOD will consider those applications in the order in which they have been received by DIO Safeguarding on that day. Given that consultation requests are invariably received by the MOD by email, the MOD will rely on the time of receipt by DIO Safeguarding of each email. If a consultation request were to be sent by post, the MOD will operate on the basis of a presumption that such requests are received at 9am on the day on which the request is received by DIO Safeguarding at its principal office which is currently at St George’s House, DMS Whittington, Lichfield, Staffordshire, WS14 9PY.
4.1.3 Do consultees have any comment on the proposal for “applications” (as referred to in paragraph 4.1.1 above) to include applications to vary, modify or amend existing consents (including “repowering” applications) subject to the exceptions proposed in the consultation (i.e. (a) applications to extend the duration of consents (whether before or after commencement of development) to which the MOD will not object if it has not objected to the original application on the basis that there is headroom available for the original application and there is no increase in predicted SGV as a consequence of the extension of duration application; (b) applications for variation, material or otherwise, modification or amendment of existing consents to which the MOD will not object if it has not objected to the original application on the basis that there is headroom available for the original application and there is no increase in predicted SGV as a consequence of the variation, etc. application).
4.1.3.1 In its new approach the MOD has provided that applications made under section 42 of the Planning Act and those made under section 36C of the Electricity Act will both be regarded as applications to vary, modify or amend existing consents, and that the MOD will not object to such applications if it has not objected to the original application and there is no increase in predicted SGV as a consequence of the variation, modification or amendment application. The MOD may require a condition and legal agreement to ensure that the SGV attributed to the original consent will not be exceeded through the variation, modification or amended application. Further, the MOD may require a condition be attached to the subsequent permission to put beyond doubt that either the original or the replacement project could be implemented, not both.
4.1.3.2 On the other hand, if such an application were to result in greater SGV than attributed to the original consent, the MOD would have regard to the SGV of the replacement project and consider whether to object, determined by whether there is sufficient headroom above the Eskdalemuir threshold for the replacement development.
4.1.3.3 The MOD has considered whether applications for variation, modification and amendment of existing consents should be assessed based on their incremental impact on SGV rather than the whole application for variation, modification and amendment being put to the end of the MOD’s List. The MOD’s concern is to act fairly and consistently. In doing so, it considers that it should continue to treat such applications as new applications other than in respect of the limited exceptions as set out in its new safeguarding approach.
4.1.3.4 As regards “repowering” applications, the MOD will apply the approach as set out in paragraph 4.1.1 above in a consistent manner. For the purposes of this approach, the MOD defines “repowering” applications as being where turbine(s) which comprise an existing development are decommissioned and new turbine(s) are installed in their place. The MOD has noted the different views regarding the importance of “repowering” applications in terms of meeting renewable energy targets. It considers that it is not for the MOD in its safeguarding role to weigh up the merits of competing applications in terms of optimisation of renewable energy generation; that is a matter for the UK and Scottish Governments in terms of their proposed guidance supported by legislative reform.
4.1.4 Do consultees have any comment on the MOD’s position regarding the use of suspensive conditions when there is no headroom available and the MOD’s approach to a “waiting list”?
4.1.4.1 The MOD has consistently taken the view that the Array would not be adequately safeguarded by the use of suspensive conditions such as would only allow development lawfully to commence if and when the Eskdalemuir threshold would not be exceeded so as to allow the MOD to withdraw its objection to development. A suspensive condition in such circumstances would not meet the tests as set out in Planning Circular 4/1998. This remains the MOD’s position.
4.1.4.2 The MOD is aware that planning authorities have granted consent subject to a suspensive condition. As noted in the consultation document, the MOD does not consider the use of a suspensive condition in such circumstances – the Eskdalemuir threshold not being exceeded and headroom subsequently becoming available - to provide adequate protection for the Array. However, to ensure the safeguarding of the Array, the MOD when undertaking its baseline audit has attributed SGV to such development. The MOD’s approach in the future will be as set out above i.e. that it does not consider the use of suspensive conditions in such circumstances - reliance on headroom subsequently becoming available - to provide adequate protection for the Array, and this will be the MOD’s position in respect of applications which are intimated to it for consideration as statutory consultee following the coming into effect of this new approach.
4.1.5 Do consultees have any other comment on the definition of applications as set out in the original consultation (i.e. applications for: (a) development; and (b) variation, material or otherwise, modification or amendment of existing consents (including repowering” applications by way of new application)?
4.1.5.1 This question relates to “applications” which are subject to the “first come, first served” approach.
4.1.5.2 The MOD’s position as regards applications for “repowering” is set out at section 4.1.3 above.
4.1.5.3 There are instances where development has not commenced and consent has been granted pursuant to an application submitted in terms of section 42 of the Planning Act subject to a condition that the section 42 consent must be operated within the predicted SGV of the original consent. The MOD has entered into an agreement with the applicant to discharge such a condition. The MOD recognises that it should not differentiate between those instances and cases where there is an existing planning permission (granted in terms of the Planning Act), and a developer is seeking consent for a replacement development in terms of the Electricity Act, simply because the replacement proposal will take the development over the 50MW threshold. The criteria that the MOD will apply is that the replacement application relates to the same or substantially similar red line boundary as the existing permission.
4.1.5.4 The MOD’s comments at section 5 below regarding a future review of the MOD’s List, should a new algorithm be adopted should be noted. Applicants should not regard any entry on the MOD’s list as being an entitlement to a particular value of SGV; predicted SGV is subject to change should the approach to calculation of SGV (of consented and/or implemented and or pending development) change.
4.1.6 Do consultees have any comment on the proposal to remove applications from the MOD’s list (and therefore the calculation of cumulative SGV) on final refusal (including the final refusal of any appeal, statutory challenge or Judicial Review or the end of the period within which any such application can be made)? Is this clear, fair and practical?
4.1.6.1 A number of respondents expressed concern about how the MOD’s List would be kept up to date.
4.1.6.2 As regards the MOD’s capacity to maintain the accuracy of the MOD’s List, the situation has been markedly improved by the considerable work (which has included the instruction of an external consultancy) undertaken in connection with the audit of the baseline. The MOD is satisfied that it is now proceeding on the understanding that it has the most up to date information.
4.1.6.3 Concerns about the MOD’s List remaining up to date are likely to be addressed by the introduction of new safeguarding software.
4.1.6.4 The MOD will continue to exercise its right to correct any inaccuracies in the MOD’s List at any time.
4.1.6.5 As regards an application which would result in the Eskdalemuir threshold being exceeded, which has been colloquially referred to as “bed blocking” the MOD considers that to maintain a consistent approach and having regard to its interest to safeguard the Array necessitates the inclusion of that development on the MOD’s List. It is not for the MOD, effectively, to seek to optimise renewable energy development.
4.1.7 Do consultees have any comment on the proposal that re- consultation will be required if any changes to the parameters required to calculate SGV (number of turbines, grid references of each turbine accurate to 1m and any micro-siting allowance, maximum hub height, maximum rotor diameter and maximum rated-power of proposed turbines) were to be proposed during the application process and that, in the event of re-consultation which has the effect of increasing the predicted SGV of the development, the MOD will consider the application anew as if it had been validated on the date of re-consultation and that the MOD will move the application on its list to this new date?
4.1.7.1 While the MOD has noted concerns about applications being moved to the end of the MOD’s List because of what might be considered to be increases in SGV which consultees described as being de minimis, or arising from factors outwith the applicant’s control, the MOD again is seeking to act fairly and consistently. The MOD is also particularly mindful of the fact that as a statutory consultee it requires to confirm to the consenting authority whether it is objecting or not to an application. If the MOD were to indicate a partial objection, that would cause uncertainty and confusion and prejudice the safeguarding of the Array. The MOD has set out its position in respect of the use of suspensive conditions which refer to headroom subsequently becoming available at section 4.1.4 above.
4.1.8 Do consultees have any comment on the proposal to remove developments from the MOD’s list if development has not taken place, there is no potential for the consent to be implemented, the consent having expired; or where development has been implemented, the development has been finally decommissioned and any underlying consent has clearly and unambiguously expired.
4.1.8.1 Reference should be made to section 4.1.6 above.
4.1.9 As noted at section 3.2.9 above, in order that the MOD can calculate the SGV from proposed developments, it will require certain information to be provided with the application, and that information will need to be captured by way of planning condition or otherwise in any consent. Is the MOD’s proposal clear, fair and practical?
4.1.9.1 While a respondent queried the appropriateness of the information required by the MOD to be provided with the application, and expressed concern about unnecessary limitations being imposed on developers, the information that the MOD requires is informed by the technical research upon which the MOD relies to safeguard the Array. The parameters set out in the MOD’s approach are those which are necessary to predict SGV from a proposed development. This is subject to the qualification that while a record of rated power could be of assistance in connection with future guidance and legislative reform relating to optimisation of renewable energy in the Consultation Zone, rated power is not a parameter that is required to safeguard the Array. The reference to rated power has therefore been removed from the MOD’s new approach.
4.1.9.2 While noting consultees’ concerns about fixing parameters of development at the stage of the making of an application, this is necessary to ensure the effective safeguarding of the Array.
4.1.9.3 The MOD, when responding to consenting authorities’ consultations will, where no objection is to be made, seek the imposition of a condition to require compliance with the parameters.
4.1.9.4 The MOD’s position in the event that any of the parameters on which it relies in calculating SGV are varied during the processing of an application is set out at section 4.1.7 above.
4.1.10 Do consultees have anything to add?
4.1.10.1 A number of respondents commented that the central focus of any reform should be on developing and implementing an enduring solution, in line with the work of the EWG. The importance of prioritising projects within the list which have the least overall impact upon the Array was highlighted, potentially with reference to proposed mitigation.
4.1.10.2 The MOD’s position is that its function is to safeguard the Array: optimisation of renewable energy generation in the Consultation Zone is not part of the MOD’s functions and it has no powers in that regard. The MOD’s response to these comments is set out at section 6 below, which notes the UK and Scottish Governments’ proposal to consult on new guidance supported by legislative reform in respect of wind turbine development in the Consultation Zone.
5 Publication of the audited MOD List
5.1 The MOD explained in its consultation document that it would require to review and validate the baseline list of existing and consented wind turbine developments in the Consultation Zone (i.e. the MOD’s List) in order to ensure that it - and the associated calculation of headroom above the Eskdalemuir threshold which is not currently referable to already-consented development - is correct. The MOD has completed this exercise.
5.2 The reason for the MOD’s audit of the MOD’s List, and the approach taken to that audit, has been explained in section 2 above.
5.3 The revised MOD’s List can be found in the third appendix to this document. This will form the basis on which the MOD will safeguard the Array, and determine whether an objection should be made to an application. The algorithm and associated MOD safeguarding tool is simply a mechanism by which the MOD determines whether the Eskdalemuir threshold will be breached, if so the MOD will object to an application.
5.4 If the algorithm is replaced, either pursuant to the ongoing work of the EWG or at any other point in the future, the MOD’s List will be further reviewed and the SGV attributed to development (whether constructed and/or consented or as a pending or a future application) will be re-assessed/ assessed in accordance with that replacement algorithm.
6 Consultation by the UK and Scottish Governments on new guidance and legislative reform
6.1 While a number of respondents called upon the MOD to adopt an approach which, in effect, would optimise renewable energy generation in the Consultation Zone, this is not part of the MOD’s functions and it has no powers in that regard. Rather, the MOD has been working, and will continue to work, in collaboration with the UK and Scottish Governments and the EWG in order to support the delivery of the policy aim of optimising renewable energy generation in the Consultation Zone, whilst at all times ensuring the continuing safeguarding of the Array.
6.2 Any new policy, guidance and/or legislation arising out of the above work is separate from the MOD’s role and functions relative to the safeguarding of the Array.
First Appendix - MOD’s consultation
1 Introduction
1.1 This document seeks views on the Ministry of Defence’s (“MOD”) proposals regarding its approach to safeguarding the Eskdalemuir Seismological Array (“the Array”) in respect of windfarm development in the Eskdalemuir Consultation Zone. The MOD’s safeguarding role will continue to be as a consultee in the consenting process, as explained in paragraph 2.6 below. A number of specific questions are asked at the end of this document. The MOD invites responses to those questions. The MOD also welcomes comments on matters not specifically raised but which may be relevant to the proposals. All responses and comments will be taken into account by the MOD before deciding on its approach.
Original
1.2 Reference should be made to the explanation given regarding the MOD’s approach to this consultation
Consultation
9.2 description
9.3 By email, to DIOEstates-EskdalemuirArray@mod.gov.uk
9.4 By posting your response to: Safeguarding team, Defence Infrastructure Organisation, St George’s House, DMS Whittington, Lichfield, Staffordshire, WS14 9PY.
9.5 Please ensure that your response reaches the MOD before the deadline. When responding, please state whether you are responding as an individual or representing the views of an organisation.
9.6 This consultation is being conducted in line with the MOD’sgovernment’s key consultation principles.
9.7 Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004. If you want information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain in your response why you regard the information you have provided as confidential. If the MOD receives a request for disclosure of the information, the MOD will take full account of your explanation but cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the MOD. The MOD will process your personal data in accordance with the Data Protection Act (DPA) and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.
9.8 This consultation seekingand viewsthe processing of personal data that it entails is necessary for the exercise of the MOD’s functions as a government department. In responding to this consultation, you may provide personal data. We shall collect and process your personal data in accordance with data protection legislation and our privacy notice. Please refer to the privacy notice which can be found on the MinistryMOD’s website: MOD privacy notice which explains your rights and gives you information you are entitled to under the Data Protection legislation. Should you require a printed copy of Defence’sthe proposalsMOD regardingprivacy itsnotice, approachplease write to the MOD Data Protection Officer; Ground floor, Zone D; Main Building; Whitehall; London SW1A 2HB or email cio-dpa@mod.gov.uk
Second Appendix - MOD’s new safeguarding approach
1 The proposed new approach will apply to all pending and future applications (hereafter referred to collectively as “Applications”) without distinction to the consenting regime under which they are made. “Pending applications” means all applications for consent submitted after 11 January 2018, that being the date when the MOD calculated the Seismic Ground Vibration (“SGV”) from the proposed windfarm development at Faw Side, until adoption of the proposed new approach. “Future applications” means those applications for consent submitted after the proposed new approach comes into effect. Requests submitted for scoping will not be considered an application for consent, whether submitted before or after 11 January 2018. Requests submitted for scoping will be removed from the list which is maintained by the MOD and in respect of which it assesses whether development, cumulatively, results in the Eskdalemuir Seismologicalthreshold Arrayof 0.336nm being breached (“the Array”)MOD’s List”). Applications for consent which follow scoping requests will be assessed in accordance with the process set out at paragraph 4 below. Consents which have already been granted will be unaffected.
2 The Eskdalemuir threshold of 0.336 nm is to be retained.
3 The 50km Consultation Zone will remain. Within that zone, a 10km exclusion zone currently operates (i.e. no windfarm development within that is permitted). It is understood that the UK and the Scottish Governments may extend the exclusion zone beyond 10km. Pending such change, the MOD’s position is that the exclusion of 10km zone will remain.
4 Applications will be assessed on a first come, first served basis. The assessment will be a calculation by the MOD using its algorithm of the SGV from Applications. The order of assessment will be undertaken on the basis of the date on which the associated consultation notification is received by email by DIO Safeguarding from the consenting authority, with no distinction between the consenting regimes under which Applications have been made. If a consultation request is sent by post, the date of receipt will be the date on which the consultation request is received by DIO Safeguarding at its principal office which is currently at St George’s House, DMS Whittington, Lichfield, Staffordshire, WS14 9PY. If more than one consultation request is received on a particular day, the MOD will consider those applications in the order in which they have been received by DIO Safeguarding on that day. The MOD will rely on the time of receipt by DIO Safeguarding of each email. If a consultation request is received by post, the MOD will operate on the basis of a presumption that such a request is received at 9am on the day on which the request is received by DIO Safeguarding at its said principal office. The MOD’s List will record the relevant notification dates (and where necessary times). The MOD’s List will also contain a record of the MOD’s calculation of SGV for all Applications (and past applications which have been granted), cumulative SGV, and its decision whether or not to object.
5 Where the Eskdalemuir threshold is predicted to be breached, the MOD will object to the relevant application on the basis of adverse impact on the Array.
6 The order of assessment will apply to all Applications, as defined in paragraph 1 above, being applications for: (a) development; (b) variation, material or otherwise, modification or amendment of existing consents; and (c) “repowering”. The MOD defines “repowering” as being where turbine(s) which comprise an existing development are decommissioned and new turbine(s) are installed in their place.
7 The only exceptions to this order of assessment will be:
(a) applications to extend the duration of consents (whether before or after commencement of development) to which the MOD will not object if it has not objected to the original application on the basis that the original application did not breach the Eskdalemuir threshold and there is no increase in predicted SGV as a consequence of the extension of duration application;
(b) other than in respect of repowering (which will not be an exception to the windfarmorder of assessment):
(i) applications for variation, material or otherwise, modification or amendment of existing consents including in terms of section 42 of the Town and Country Planning (Scotland) Act 1997 and section 36C of the Electricity Act 1989; and
(ii) where consent is being sought for a replacement development in terms of the Electricity Act 1989 and the original consent was granted under the Town and Country Planning (Scotland) Act 1997, and vice versa, provided that the replacement application relates to the same or substantially similar red line boundary as the original consent, in respect of both (i) and (ii) to which the MOD will not object if it has not objected to the original application on the basis that the original application did not breach the Eskdalemuir Consultationthreshold Zone.and there is no increase in predicted SGV as a consequence of the variation, etc. application. The MOD may require a condition and legal agreement to ensure that the SGV attributed to the original consent will not be exceeded through the variation, etc. application. The MOD may also require a condition to be attached to the subsequent permission to put beyond doubt that either the original or the replacement project could be implemented, not both. In considering whether there is increase in predicted SGV the MOD will apply the same algorithm when calculating SGV for the original consent and the varied, etc. application.
8 The MOD is aware of consenting authorities having attached a condition to a consent which has been relied upon to permit development when headroom above the Eskdalemuir threshold may subsequently become available. For the avoidance of doubt, the MOD’s practice is - and will continue to be - to object to development where it is predicted that the Eskdalemuir threshold will be breached. The MOD does not consider the use of a suspensive condition in such circumstances to provide adequate protection for the Array.
9 Where an application to discharge a condition (as referred to in paragraph 8 above) is submitted, the assessment as to whether the Eskdalemuir threshold will be breached will be determined with reference to the date and time on which the consultation notification was received by the MOD from the consenting authority in respect of the consent to which the condition relates.
10 Applications will be removed from the MOD’s List on final refusal. The MOD will not remove an application from the MOD’s List until the statutory period for any appeal, statutory challenge or Judicial Review has expired without an appeal, statutory challenge or Judicial Review having been made. If an appeal, statutory challenge or Judicial Review is made against a decision of the consenting authority, the MOD will not remove an application from the MOD’s List until the final refusal of any such appeal, statutory challenge or Judicial Review.
11 Consented developments will be removed from the MOD’s List where (a) if development has not taken place, there is no potential for the consent to be implemented, the consent having expired; or (b) where development has been implemented, the development has been finally decommissioned, and any underlying consent has clearly and unambiguously expired.
12 In order that the MOD can calculate the SGV, and its impact on the detection capabilities of the Array, from proposed developments, it will require certain information to be provided with the application as set out in paragraph 13 below. A decision not to object will be taken strictly on the basis of the information provided. The MOD will require that the development will be constructed in accordance with the information provided for the calculation and this will be secured by an appropriate condition on the consent. Re-consultation will be required if any changes to the information are proposed during the application process. In the event of re- consultation which has the effect of increasing the predicted SGV of the development, the MOD will consider the application afresh and will move the application on the MOD’s List to the date and time on which the re-consultation notification is received by the MOD from the consenting authority. The MOD will re-determine whether the Eskdalemuir threshold would be breached by any changes to the information. In considering any breach of the Eskdalemuir threshold the MOD will apply the same algorithm when it is calculating SGV for the application as submitted and any variation.
13 The information required is:
Numberofturbines;Layoutandlocationofindividualturbinesandancillarydevelopment,includinggridcoordinates(OrdnanceSurveygridreferencesaccurateto1m)andanymicro-sitingallowance;andMaximumhubheightandmaximumrotordiameter.
TheMODmayrequireaconditiontobeattachedtoaconsentregardingstrictcompliancewiththeinformationprovidedwiththeapplication.
Third Appendix - MOD’s List
20260218 - Audited MOD List
Documents
Updates to this page
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Consultation response added to the 'Final Outcome' tab.
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New document added after consultation.
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Update: MOD anticipates publishing its new approach to the safeguarding of the Array in the summer.
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First published.