Pilot Pentland Firth and Orkney Waters Marine Spatial Plan - Partial Business and Regulatory Impact Assessment

Pilot Pentland Firth and Orkney Waters Marine Spatial Plan - Consultation Draft - Partial Business and Regulatory Impact Assessment

Title of Proposal

Pilot Pentland Firth and Orkney Waters Marine Spatial Plan - Consultation draft

Purpose and intended effect

Background

In 2009 the Marine and Coastal Access Act was published containing provisions aimed at the effective management of the UK marine environment. The Act sets in place the foundation for the adoption by the UK Government of both a marine planning system and a Marine Policy Statement covering UK territorial waters. As a result the UK Marine Policy Statement ( UK MPS) was published and adopted by all UK administrations in 2011. The UK MPS is a high-level policy framework that aims to guide the preparation and implementation of marine plans in the UK. The UK MPS contains provision for the adoption of a system of marine planning that includes National Marine Plans and the preparation of sub-national, Regional Marine Plans. Alongside the Marine and Coastal Access Act (2009) and the UK MPS the Marine (Scotland) Act 2010 also sets in place a framework for the implementation of a network of Regional Marine Plans. The provisions contained in the Marine (Scotland) Act 2010 include the requirement for Scottish ministers to prepare and adopt a National Marine Plan covering Scottish waters whilst a Marine Policy Statement is in place. Scotland’s National Marine Plan ( NMP) was published in March 2015. All Regional Marine Plans produced under the Marine (Scotland) Act 2010 must comply with the aims and policies contained within the adopted National Marine Plan and the UK MPS.

The published Scottish National Marine Plan contains policy guidance and provides a framework for the production of Regional Marine Plans. Marine Planning Partnerships, including local authorities and stakeholders (amongst other parties), will be responsible for the production of future Regional Marine Plans. In light of the future production of regional marine planning the pilot Pentland Firth and Orkney Waters Marine Spatial Plan has been produced to pilot the process of regional marine planning. The Plan aims to trial the approach that future Marine Planning Partnerships may take in the preparation of suitable policies (including interpreting the policy framework of the NMP within a local context) and the approach that may be taken to governance of Marine Planning Partnerships (including local authority and stakeholder involvement). The pilot Pentland Firth and Orkney Waters Marine Spatial Plan is therefore a non-statutory precursor to the Regional Marine Plans. Whilst the pilot Plan does not form part of the statutory marine planning system, it is hoped that it will be used as a material consideration in the existing marine management, planning and consenting processes.

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan includes two of the Scottish Marine Regions designated through the Scottish Marine Regions Order 2015 (Orkney and the North Coast). The Scottish Marine Regions covered by the pilot Plan area are similar to regions identified in Scotland’s Third National Planning Framework ( NPF3) as areas of key significance in delivering the Scottish Government’s Low Carbon Strategy (Orkney, Pentland Firth and North Caithness). It is hoped that this pilot Plan will be a key mechanism in delivering the development of the renewable energy generation sector in the area, both directly (as a consideration in current processes) and indirectly as a precursor to the statutory Regional Marine Plans.

With this background in mind the pilot PFOW MSP has been developed in accordance with the National Marine Plan and all preceding legislation with a bearing on marine planning. The pilot PFOW MSP also sits within the international framework for marine planning that includes and the United Nations Convention on the Law of the Sea, the European Union Maritime Spatial Planning Directive and various other European Union directives (such as the Marine Strategy Framework Directive).

Objective

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan aims to put in place a non-statutory planning and policy framework in advance of statutory regional marine planning. It is hoped that the development of this Plan will be useful in establishing the basis for two separate Regional Marine Plans for Orkney and the North Coast Scottish Marine Regions. The pilot marine spatial planning process will provide many lessons learnt that will be helpful in informing the preparation of future regional marine plans and the governance arrangements that may underpin future Marine Planning Partnerships.

In meeting these aims the pilot Plan will be meeting the Scottish Government purpose as outlined in the Government Economic Strategy; to create a more successful country with opportunities for all of Scotland to flourish through increasing sustainable economic growth. It will also contribute to the following national outcomes:

• we live in a well-designed, sustainable place where we are able to access the amenities and services we need
• we value and enjoy our built and natural environment and protect it and enhance it for future generations
• we live in a Scotland that is the most attractive place for doing business in Europe
• we reduce the local and global environmental impact of our consumption and production.
• we realise our full economic potential with more and better employment opportunities for our people

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan will help meet the Scottish Government’s aim to have clean, healthy, safe, productive and biologically diverse oceans and seas. The Plan will also help to meet the Scottish Government goal to have seas that are managed to meet the long term needs of nature and people.

Rationale for Government intervention

The Pentland Firth and Orkney Waters are used by a wide range of marine users and for a variety of activities. A vast majority of the Plan area is used for multiple activities and so there is potential for competition and conflict. Whilst the Plan area has been highlighted as a key area for the development of the offshore renewable energy generation industry in Scotland, the Pentland Firth and Orkney Waters also contain a variety of important and rare species as well as a range of internationally important historic sites. The variety of potentially competing uses of the area creates the risk that the marine environment may be mismanaged and damaged with consequences for both the goods and services it provides and the natural and historic heritage of the area. Poor management of the area could result in costs and uncertainty for developers and marine users which could have a negative impact on progress towards fulfilling Scottish Government national outcomes in the area. The National Marine Plan (and the policy framework it sits within) has provided for a system of statutory Regional Marine Plans to aid in the management of the marine environment. This non-statutory pilot Plan precedes the statutory Regional Marine Plans.

The pilot Plan has been developed to pilot the process of creating the statutory Plans and to inform the Marine Planning Partnerships which will be formed to produce them. In this way the production of this document will contribute to the effective preparation of the Regional Marine Plans. In addition to this, the pilot Plan will be used as a material consideration in the existing planning and consenting process, directly improving the clarity and guidance given to developers and regulators in the Pentland Firth and Orkney Waters.

Consultation with Businesses

Face-to-face consultation with a range of businesses will take place during the consultation period in June-September 2015. However, representatives from relevant sectors have frequently been involved in the development of their respective policies throughout the development of the Plan.

Options

Option 1 – Do nothing

Under this option, the pilot Pentland Firth and Orkney Waters Marine Spatial Plan would not be adopted. The existing policy framework governing Scottish waters would remain, including the Marine Policy Statement and European Directives (e.g. the Marine Strategy Framework Directive, Water Framework Directive and Habitats Directive). In addition to this the National Marine Plan will remain in place, including its requirement for statutory regional marine planning. As many of the Policies in the Plan are reiterations of existing planning and policy requirements, some of the policies contained in the Plan will continue to be implemented in the absence of the Plan.

As the pilot Plan aims to pilot the regional marine planning process and inform the Marine Planning Partnerships, the absence of this Plan could significantly reduce the effectiveness of the future Regional Marine Plans. In this way the absence of this Plan will increase the difficulty of implementing the requirement for Regional Marine Plans in the National Marine Plan. The guidance and consolidation the Plan will likely bring to the existing consenting and planning process (through its intended use as a material consideration) would also be absent if this Option was adopted.

In line with the vision of the UK Marine Policy Statement, the provision for regional marine planning set out in the Marine (Scotland) Act 2010, and the aims and requirements of the National Marine Plan this is not seen as a viable option.

Option 2 – Development and adoption of a pilot Pentland Firth and Orkney Waters Marine Spatial Plan.

Under this option the pilot Pentland Firth and Orkney Waters Marine Spatial Plan would be adopted. The pilot Pentland Firth and Orkney Waters Marine Spatial Plan consolidates the requirements of the National Marine Plan, the Marine Policy Statement and existing European Directives. The Plan also pilots the regional marine planning process. The experience gained from this process will help to guide and inform the preparation of future Regional Marine Plans and the work of the Marine Planning Partnerships that will be formed to deliver these.

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan also sets out some new and additional policies and conditions for development in the Pentland Firth and Orkney Waters area.

Sectors and groups affected

A number of sectors may be affected by the adoption of the pilot Pentland Firth and Orkney Waters Marine Spatial Plan:

• developers of licensed activities in the Pentland Firth and Orkney Waters area (including oil and gas, renewable energy, ports & harbours, aquaculture and all other licensable activities. These activities could be Scottish-owned, Rest of UK-owned or foreign-owned)
• activities in the Pentland Firth and Orkney Waters marine area that do not require a licence or that require licences without a spatial component to them (i.e. those not linked to specific geographical location, e.g. fishing, shipping, tourism, leisure and recreational activities). Those affected may be Scottish, Rest of UK, or foreign.
• coastal communities
• the Scottish Government (through Marine Scotland’s Planning and Licensing Operations)
• the Orkney Islands Council and the Highland Council
• regional Marine Planning Partnerships (including local authorities)

Costs

Option 1

It is not envisaged that this option will create any additional costs for developers. As many of the policies within the Plan are reiterations of existing policies, these requirements would remain in place. However, under this option the Plan would not consolidate policies in an accessible manner, or aid in the application of existing policies in a local context. Developers could suffer from ongoing uncertainty surrounding planning and licensing which could, in turn, result in higher costs, undermining sustainable economic growth and the protection of Scotland’s marine environment.

This option would potentially undermine the feasibility and effectiveness of future Regional Marine Plans as the process would not have been piloted.

Option 2

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan reiterates many existing policies (For policies considered ‘baseline’ see annex A). However, it also sets out a variety of new policies (annex B) that aim to provide guidance in the development of the Pentland Firth and Orkney Waters area. Some of the policies included in the plan are general and apply to all activities and uses of the marine environment. Others however, are specifically applicable to particular sectors such as renewable energy generation, aquaculture, oil and gas or commercial fishing etc.

Although this Plan is non-statutory the new policies are likely to be material considerations in the existing planning and consenting processes. New policies may also inform or be carried into the future statutory Regional Marine Plans. Therefore it is likely that this Plan will have some implications for the sectors and groups specified above, though it is not certain that all requirements contained within the Plan will be applied due to its non-statutory nature. The policies can influence:

• The preparation of, and consultation upon, Regional Marine Plans by future Marine Planning Partnerships
• The preparation of applications by developers and the assessment of applications by licensing authorities
• The choice of location of marine developments and activities
• The requirements placed on the construction, operation and expansion of marine developments

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan will be presented to Scottish ministers for adoption in 2016. As such it’s conditions would only apply to developments and applications after it has been approved.

This BRIA has not quantified additional costs incurred as a result of the adoption of this option and the policies contained within the Plan. At this stage it is not possible to estimate and quantify the additional costs to developers with any accuracy therefore, a qualitative approach has been taken to assessing the additional costs of new policies within this BRIA.

Table 1 sets out the potential impacts and costs associated with new policies (Annex B).

Table 1: Potential Impacts of New and Additional Policies (Annex B) Contained in the pilot Pentland Firth and Orkney Waters Marine Spatial Plan Policies

Policy	Costs
General Policy 1B: Supporting Sustainable Social and Economic Benefits	Potential Additional Costs for Developers Requirement to maximise local supply chain opportunities may lead to suppliers choosing more expensive supply option to comply with this guidance. Requirements on developers to consult, and cooperate may be additional to current requirements and this may result in developers changing or adding to their existing processes, incurring additional costs.
General Policy 1C: Safeguarding the Marine Ecosystem	Limited/ No Additional Costs to Developers Requirement to minimise and mitigate damage to the natural environment is already required by the licensing and consenting process. It is likely that no additional actions are required to comply with this policy and so there are likely to be no/limited additional costs.
General Policy 2: The Well-Being Quality of Life and Amenity of Coastal Communities	Potential Additional Costs for Developers Requirement on developers to consult, engage, and cooperate with other marine users may alter developer behaviour and create additional tasks, resulting in increased costs. Requirement to mitigate damage will result in additional actions and so incur additional costs.
General Policy 4C: Wider Biodiversity	Limited/ No Additional Cost to Developers Developers must already take into account the effect of development on Priority Marine Features; both effectively demonstrating the absence of an effect or putting in place mitigation for the effect. There is therefore unlikely to be any additional costs for developers.
General Policy 5A: Water Environment	Potential Additional Costs for Developers Requirement to gather information about potential adverse effects will likely result in additional actions which may incur additional costs on developers. Requirement to co-operate with existing activities with an effect on the water environment may result in additional actions for developers.
General Policy 7: Integrated Coastal and Marine Development	Limited/ No Additional Costs to Developers The requirement to produce a single Environmental Impact Assessment ( EIA) where this is appropriate is already encouraged within the licensing and consenting process. This requirement is therefore unlikely to result in any additional actions for developers and there is not likely to be any increased costs. The requirement in this policy for developers to produce a single EIA (where appropriate) may cause developers to consider producing a single EIA where they would not have otherwise done so. In this scenario costs for developers would decrease as fewer EIAs have to be completed.
General Policy 9: Invasive Non-Native Species	Potential Additional Costs to Developers Requirement for developers to put in place biosecurity plans will result in additional actions and so incur additional costs for developers. Requirement for developers to produce contingency and mitigation plans will result in additional tasks and activities which will produce increased costs for developers. Activities resulting from mitigation and contingency plans produced to meet the requirements of this policy will result in developers changing or adding to their existing processes. This has potent to result in additional tasks. This may incur increased costs for the developer.
Sectoral Policy 1: Commercial Fisheries	Potential Additional Costs to Developers Requirement of Port and Harbour operators to engage with local fishers could result in additional activities and result in altered behaviour, potentially increasing costs for the developers.
Sectoral Policy 4: Renewable Energy Generation	Limited/ No Additional Costs to Developers Requirement to take account of Regional Locational Guidance ( RLG). The RLG published alongside the pilot Pentland Firth and Orkney Waters Marine Spatial Plan does not differ significantly to the RLG published alongside the draft Sectoral Marine Plans and so is unlikely to incur additional costs for developers.
Sectoral Policy 5: Recreation, Leisure and Tourism	Potential Additional Costs for Developers Requirements on developers to consult, and cooperate may be additional and alter behaviour, resulting in additional costs. The requirement to mitigate damage to recreation, leisure and tourism may result in additional actions and activities, incurring additional costs for the developer.
Sectoral Policy 9: Marine Aggregates	Potential Additional Costs for Developers The requirement for developers to cause no significant adverse impact on other marine activities may incur additional costs through information gathering and engagement activities. As a result developments may also be required to be sited away from the optimal area.

It is envisaged that adoption of the pilot Pentland Firth and Orkney Waters Marine Spatial Plan will incur some additional costs for businesses. However, as the Plan is non-statutory, it is not guaranteed that all of the new policies will come into effect. Costs have not been quantified due to uncertainty about the potential costs.

Benefits

Option 1

No additional benefits are expected to arise from this option.

Option 2

Implementing the pilot Pentland Firth and Orkney Waters Marine Spatial Plan should help deliver the benefits of a marine planning system set out in the Final Regulatory Impact Assessment for the Marine (Scotland) Act 2010. These benefits include:

• reducing planning risk and uncertainty
• a more informed site selection process
• benefits for the economy including an efficient use of Scotland’s marine resources, reduced conflict between marine users and a greater confidence and certainty for developers whilst negotiating the planning and consenting system
• policies involving stakeholder engagement would have social benefits, involving local communities in the use of the marine area
• environmental benefits include the protection of internationally, nationally, and locally important nature conservation and biodiversity sites and interests. This option helps environmental issues to be incorporated into the planning and management process

Additional benefits may include consideration of the Pentland Firth and Orkney Water’s historic environment and its protection in planning and development decisions in the area.

The pilot Pentland Firth and Orkney Waters Marine Spatial Plan will provided future Marine Planning Partnerships with a clear approach to the preparation of future Regional Marine Plans. This will likely lead to more effective Regional Marine Plans that will help planning and licensing authorities to manage the marine environment and the region’s marine resources more effectively than if the Plan had not been adopted.

Scottish Firms Impact Test

This section will be informed by evidence gathered during the consultation phase and completed in the final BRIA. In addition to the written consultation process there will be meetings with a number of businesses affected by the proposal across a range of sectors.

Some of the sectors that will be impacted by the Plan will include small firms. Much of the pilot Pentland Firth and Orkney Waters Marine Spatial Plan reiterates and consolidates existing policy, these elements of the Plan are unlikely to impose additional costs on small businesses. The Plan does include some new policy elements which may have impacts on the developers of licensable activities and may impose additional costs on small businesses.

Small and micro businesses are likely to benefit from the reduced risk and uncertainty that this Plan will provide. Activities that do not currently require a licence with a spatial element will benefit from their interests being considered as part of proposals for development.

Competition Assessment

New and additional policies within the pilot Pentland Firth and Orkney Waters Marine Spatial Plan may affect a variety of marine activities. Particular effects may be seen in marine activities for which developers require a spatial licence to carry out new or amended operations. Such activities include renewable energy generation, aquaculture and ports and harbours.

Competition Filter Questions

Will the proposal directly limit the number or range of suppliers? (Will it award exclusive rights to a supplier or create closed procurement or licensing programmes?)

No. It is not likely that the number or range of suppliers will be directly limited by the adoption of the pilot Pentland Firth and Orkney Waters Marine Spatial Plan.

Will the proposal indirectly limit the number or range of suppliers? (Will it raise costs to smaller entrants relative to larger existing suppliers?)

Limited/ No Impact. As the policies which affect the preparation of applications, location of marine developments and activities, or requirements for marine developers would apply equally to all developers, irrespective of business size, there is unlikely to be any impact on this. The new and additional policies within the Plan have the potential to incur additional costs for developers submitting new licence applications. However, the policies will apply to both new entrants and existing developers seeking to expand or change their operations.

Will the proposal limit the ability of suppliers to compete? (Will it reduce the channels suppliers can use or geographic area they can operate in?)

No. The policies contained within the pilot Pentland Firth and Orkney Waters Marine Spatial Plan will not directly affect firms’ route to market or the geographical markets they can sell into.

Will the proposal reduce suppliers' incentives to compete vigorously? (Will it encourage or enable the exchange of information on prices, costs, sales or outputs between suppliers)

No. Although policies that support co-existence of developments may encourage some aspects of cost-information sharing, these companies are likely to be undertaking different activities and so would not be in competition with one another.

Test run of business forms

It is not envisaged that the pilot Pentland Firth and Orkney Waters Marine Spatial Plan will result in the creation of new forms for businesses to deal with, or result in amendments of existing forms.

Legal Aid Impact Test

It is not expected that the pilot Pentland Firth and Orkney Waters Marine Spatial Plan will have any impact on the current levels of access to justice through legal aid or on the possible expenditure from the Legal aid fund.

The Scottish Legal Aid Board have agreed that there is not expected to be any impact of this Plan on Legal Aid expenditure.

Enforcement, sanctions and monitoring

As the pilot Pentland Firth and Orkney Waters Marine Spatial is non-statutory there is no requirement for enforcement, sanctions and monitoring. The Plan is to be used as a material consideration in the existing licensing process of Marine Scotland and in the planning system of local authorities.

Summary and Recommendation

It is recommended that Option 2 (the adoption of the pilot Pentland Firth and Orkney Waters Marine Spatial Plan) is adopted. This would help the implementation of the National Marine Plan, and inform the production of future Regional Marine Plans.

Summary Costs and Benefits Table

Option	Summary of Costs	Summary of Benefits
1: Do Nothing	No additional costs envisaged. Lack of guidance to inform the preparation of policies in the Regional Marine Plans and the governance of Marine Planning Partnerships. Continued lack of certainty and clarity for developers and planning authorities.	No additional benefits envisaged.
2: Adopt the pilot Pentland Firth and Orkney Waters Marine Spatial Plan	Potential for additional costs for developers of licenced activities to be incurred. See Table 1 for details.	Guidance for the preparation of future statutory Regional Marine Plans. Clarity and guidance for the existing planning and consenting process.

Declaration and publication

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact will be assessed with the support of businesses in Scotland.

Minister’s name Richard Lochhead

Minister’s title Cabinet Secretary for Rural Affairs, Food and the Environment

Scottish Government Contact point:

Tracy McCollin – tracy.mccollin@scotland.gsi.gov.uk