Planning Circular 1/2015: relationship between the statutory land use planning system and marine planning and licencing

Marine licensing and consents

53. Marine Scotland-Licensing Operations Team ( MS-LOT) administers the marine licensing function under Part 4 of the Marine (Scotland) Act 2010 from 0 to 12 nautical miles and under Part 4 of The Marine and Coastal Access Act 2009 from 12-200 nautical miles. The marine Acts have a landward limit of Mean High Water Springs.

54. Together, under the provisions of the marine Acts and executive devolution of some otherwise reserved functions, this means that Marine Scotland is the competent authority for licensing most activities in Scotland's marine environment. However, licensing of most activities relating to oil and gas, defence and pollution from shipping remain reserved to the UK Government.

55. The following activities require to be licensed by Marine Scotland:

• depositing any substance or object within the Scottish marine area, either in the sea or on or under the seabed, from a vehicle, vessel, aircraft or marine structure.
• constructing, altering or improving any works within the Scottish marine area either in or over the sea, or on or under the seabed.
• using a vehicle, vessel, aircraft, marine structure or floating container to remove any substance or object from the seabed within the Scottish marine area (including dredging).

56. Under separate legislation, licences and consents are required for marine based electricity generating stations of capacity greater than 1 Megawatt (MW), for activities affecting specific 'protected species' and for some activities which relate to oil and gas related activities between 0 and 12 nautical miles.

57. Certain activities are specifically exempted from marine licensing by Order, for example maintenance of ports and harbours and coastal defences (for or on behalf of a Local Authority). Certain activities required for safety and in emergency situations are also exempted. Fishing is exempt from marine licensing as it has its own regime.

58. While aquaculture developments are exempt from most of the marine licensing regime (fish farms require planning permission from a terrestrial planning authority), a licence is required in relation to navigational aspects. Finfish developments require a marine licence in relation to discharges from wellboats.

59. Some 'licensable marine activities' are regulated activities that form part of a plan or project that may require Environmental Impact Assessment under the Marine Works ( EIA) Regulations 2007 (as amended) and/or the Electricity Works ( EIA) (Scotland) Regulations 2000 (as amended). Marine Scotland expects significant and early pre-application consultation with applicants as well as cross-cutting discussions with any other regulatory or appropriate authority engaged in the Environmental Impact Assessment process, such as a relevant Local Authority. Early dialogue is of paramount importance if the process is to be as efficient as possible.

60. Where multi-regime consents are required (for example planning permission and a marine licence), early engagement with the consenting authorities will be particularly important to discuss which consents are required. It can also be used to discuss the scope for coordinating the different consenting processes and any associated assessment requirements (for example Environmental Impact Assessment ^[8] or Habitats Regulations Appraisal). In this way all parties can seek to minimise duplication whilst ensuring regulatory requirements are fully met.

61. Before a marine licence application is determined, Scottish Ministers publish a notice that an application has been received. Statutory consultees must be consulted; this will include Marine Planning Partnerships for applications out to 12 nautical miles. Terrestrial planning authorities are not statutory consultees, but will be consulted on a case by case basis by MS-LOT where there are clear terrestrial implications. Planning authorities will also be consulted through their role with Marine Planning Partnerships. Ministers will consider the environment, human health, legitimate uses of the sea and any other matters they consider relevant in determining a licence. Ministers have powers to vary, revoke or suspend a licence, and to take enforcement action. They may also hold an enquiry into a licence application.

62. Applicants who are dissatisfied with the Scottish Ministers' decision on a licence application may appeal to a Sheriff.

63. Since marine licensing covers the marine area up to Mean High Water Spring and terrestrial planning control extends down to Mean Low Water Spring, there is an overlap of consenting regimes in the inter-tidal zone. This means that for some activities there may be a need for both a marine licence and planning permission. In addition, a works licence may also be required in relation to activity of statutory Harbour Authorities and in Shetland and certain parts of Orkney within waters of Local Authority jurisdiction.