Offshore wind, wave and tidal energy applications: consenting and licensing manual

5. Determination

Prior to determining an application Scottish Ministers will take into consideration the environmental information, including the EIA Report, any additional information, any AA, any comments made by the consultation bodies, and any representations from members of the public about environmental issues. Scottish Ministers must reach a reasoned conclusion, on the significant effects of the development on the environment which is up to date.

Consent and licence applications are either determined by MS-LOT under executive powers or by Scottish Ministers taking account of recommendations from MS-LOT.

Small scale offshore renewable energy projects which require only a marine licence are likely to be determined by MS-LOT.

Applications for s.36 consents for offshore renewable energy projects are processed by MS-LOT and recommendations are made to the Minister for Business, Innovation and Energy for determination. The Minister will take account of the recommendation, and any other material considerations, when making the determination. The Minister may decide to call a Public Local Inquiry (PLI) before making the determination.

5.1 Use of Conditions

Consents and licences are usually granted subject to conditions, to which the developer will be required to adhere. Conditions will not be used as a means of shortcutting the consenting or licensing processes or employed on a purely precautionary basis.

Scottish Ministers will give careful consideration before recommending the imposition of any conditions. Conditions have to be both effective and necessary, and should be used to achieve a specific end, not to cover every eventuality.

Scottish Ministers must always have regard to the six criteria for planning conditions which are set out in the Scottish Government's Planning Circular 4/1998 i.e. conditions should be:

1) Necessary;
2) Relevant to Planning;
3) Relevant to the development to be permitted;
4) Enforceable;
5) Precise; and
6) Reasonable in all other respects.

The wording of conditions should be clear, concise and unambiguous and a reason will always be given for each condition imposed. For example, it may be appropriate to require developers to undertake pre and post installation monitoring to ensure that the projected impacts are within acceptable parameters, especially with regard to compliance with NATURA regulations.

5.2 Notification of decisions

Where a determination on an offshore renewable energy project requiring an EIA is made, public notices on the decision are required. Scottish Ministers will send the decision notice to the developer, send a copy to consultees and publish the notice on the Marine Scotland website.

The developer must, as soon as reasonably practicable, publish a notice on their own application website, in the Edinburgh Gazette and in a newspaper circulating in the locality in which the proposed development is sited, which is likely to come to the attention of those likely to be affected by the proposed development.

For s.36 applications, the planning authority must make the decision notice available for public inspection at an office of the planning authority and on a website.

Decision notices are also required for multi-stage consents (see Section 6.5.1).

The decision notice must include the following information:
a) a description of the development;
b) the terms of the decision;
c) the main reasons and considerations on which the decision is based;
d) information about the arrangements taken to ensure the public had the opportunity to participate in the decision making procedures; and
e) a summary of—
i. the environmental information; and
ii. the results of the consultations and information gathered and how those results, in particular comments received from an EEA State pursuant to consultation, have been incorporated or otherwise addressed;
f) if the decision is to grant consent—
i. any conditions to which the decision is subject;
ii. the reasoned conclusion on the significant effects of the development on the environment;
iii. a statement that the Scottish Ministers, are satisfied that the reasoned conclusion is still up to date;
iv. a description of any features of mitigation measures;
v. a description of any monitoring measures required;
g) information regarding the right to challenge the validity of the decision and the procedures for doing so.

If an application was also made under Section 36A for a declaration extinguishing etc. public rights of navigation, then there is also a requirement on Scottish Ministers to: (a) publish the declaration or determination in such manner as appears to them to be appropriate for bringing it, as soon as is reasonably practicable, to the attention of persons likely to be affected by it; or (b) secure that it is published in that manner by the applicant for the declaration.

For Marine Licence determinations for developments from 12 – 200 nm, The Marine Works (Environmental Impact Assessment) Regulations 2007 require that the applicant must publicise a notice of the EIA consent decision, stating that copies of the EIA consent decision letter are available on the Public Register and giving details of the times at which the Public Register may be inspected, in the newspapers or other publications in which notice of the application was published.

5.3 Refusal

Under s.26 of the 2010 Act and s.67 of the 2009 Act, the Scottish Ministers may refuse to proceed with a marine licence application if it has not been made in an acceptable form, or accompanied with any required information.

Should applications for consents/licences be refused, MS-LOT will advise on the reasons, and on the best way forward should applicants wish to revise and resubmit their applications.