Elected Member Briefing Note 2026, No. 48
About this Briefing Note
Report by: Lisa Simpson, Strategic Lead - Legal and Governance
Date: 14 April 2026
Subject: Braco Planning Applications
Details
Purpose
This briefing note provides an update on two related planning applications at Braco:
Formation of a 400kV substation, including a control building, engineering operations and associated works, on land at Shinadour, Feddal Hill Wood, Braco (25/00490/FLN) ("the substation application")
Formation of a 1.2km haul track on land at North Glassick Farm, Braco (25/00984/FLM) "the haul track application")
Briefing Information
Background and Decision-making to date
The substation application was considered by a meeting of the full Council on 10 December 2025, as the proposal constitutes a national development. At that stage, further information relating to the haul track application had not yet been submitted.
The haul track application was subsequently considered and determined by the Planning and Placemaking Committee on 11 March 2026 but due to a procedural irregularity, it was to be considered afresh at the next scheduled meeting of the Planning and Placemaking Committee (15 April 2026).
Environmental Impact Assessment (EIA) context
The Scottish planning system operates in accordance with the Environmental Impact Assessment Directive 2011/92/EU, as implemented through the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017.
A key part of this framework is the screening process, through which the planning authority determines whether a proposal constitutes EIA development and therefore requires an Environmental Impact Assessment Report (EIA Report). This determination is set out in a formal Screening Opinion.
In February 2024, the Planning Service issued a Screening Opinion in respect of the substation application. At that point, the route of the haul track had not been finalised and was therefore not considered as part of the screening assessment. The Screening Opinion concluded that the substation application on its own did not constitute EIA development.
Legal Challenge to the substation consent
Objectors to the substation application disagreed with the conclusions of the February 2024 Screening Opinion. They argued that the substation and haul track should have been considered together for EIA purposes and that, as a result, the Council's decision to grant planning permission for the substation was unlawful. A petition for judicial review was therefore lodged in relation to the Council's December 2025 decision. The Council received notice of this on 17 March 2026.
Recent relevant case law and implications for Braco applications
On 17 February 2026 the Court of Session published a judgement in the case of Raeshaw Farms Ltd v Scottish Ministers and Another [2026] CSIH 10.
That case concerned the approval of a windfarm where the environmental impacts of the windfarm had been assessed separately from its associated grid connection. The Inner House held that the decision-maker ( in that case, the Reporter on behalf of Scottish Ministers) had erred by failing to consider whether the windfarm and grid connection should have been assessed as a single project for the purposes of the EIA Regulations. The Court reaffirmed that this is a matter of planning judgment for the decision-maker to exercise, but also made clear that adequate reasoning must be provided to explain why connected developments are, or are not, assessed together.
The purpose of the EIA Directive is to ensure that planning decisions are taken with full knowledge of any likely significant environmental effects, assessed on a reasonable "worst case" basis.
In light of the Raeshaw Farms judgement and the fact that the February 2024 Screening Opinion did not take account of the haul track, it is extremely unlikely that the original Screening Opinion could have been successfully defended. Accordingly, the Council's December 2025 decision to grant planning permission for the substation will be quashed, and the substation application will return to the Council for re-consideration.
On 11 March 2026 the Planning Service published a revised Screening Opinion which sought to assess the combined impacts of both the substation application and the haul track. Despite this, having considered the detail of the Raeshaw case and the subsequent Judicial Review application, it is the professional assessment of Legal and Planning Officers that it is inadequate insofar as:
it does not consistently demonstrate that the two applications have been assessed together throughout; and some conclusions on environmental effects are insufficiently reasoned to withstand legal scrutiny.
As a result, the Planning Service is preparing a further, replacement Screening Opinion. This work is currently underway and is expected to be completed shortly.
Next steps
Once the new Screening Opinion is published:
- If it concludes that the two proposals, when considered together, do not constitute EIA development, any person dissatisfied with that conclusion may request that Scottish Ministers issue a direction requiring an EIA Report.
- If the Screening Opinion concludes that the proposals do constitute EIA development, the applicant will be required to submit a comprehensive EIA Report before the applications can be reconsidered.
Only once the screening process (and any subsequent Ministerial direction) has been concluded can the applications proceed to determination.
Given that the substation application must be determined by the full Council, it is intended that the related haul track application will be considered at the same Council meeting.
For these reasons, it has not been possible for the haul track application to be considered at the Planning and Placemaking Committee meeting on 15 April.
It is proposed to convene a special meeting of the Council to determine these two applications. That date will be determined once the revised screening opinion has been published.
Wider implications
The Raeshaw Farms judgment has wider implications for planning authorities across Scotland. It does not mean that all renewable energy developments will automatically require joint EIA assessment with associated grid connections or haul routes. However, it does indicate that a more cautious and clearly reasoned approach is required when considering whether related developments should be assessed together for EIA purposes.
