ANNEX A - Legal Background
55. Section 36(2) of the Electricity Act 1989 provides that the requirement for consent under section 36(1) will not apply to a generating station whose capacity does not exceed 50 MW. Sections 36(2) and (3) enable the permitted capacity to be substituted and for different provision to be made for different classes or descriptions of generating station.
56. The powers available under section 36 were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999. The Scottish Ministers currently exercise these functions by virtue of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.)(No. 2) Order 2006. This transferred to the Scottish Ministers the functions of the Secretary of State under section 36 (and paragraph 7A of Schedule 8) in or as regards Scotland, including in the area designated by the Renewable Energy Zone (Designation of Area)(Scottish Minister) Order 2005.
57. The Electricity Act 1989 (Requirement of Consent for Hydro-electric Generating Stations) (Scotland) Order 1990 changed the permitted limit from over 50 MW to over 1 MW in the case of generating stations wholly or mainly driven by water. This Order was made pre-devolution and extends to Scotland only.