Consultation on Registerable Marine Activities and on Marine Licence Applications Requiring Pre-Application Consultation

PARTIAL BUSINESS AND REGULATORY IMPACT ASSESSMENT

Title of Proposal

Marine Licensing - Introduction of Pre-Application Consultation

Ref: Consultation on Registerable Marine Activities and on Marine Licence Applications Requiring Pre-Application Consultation'

Ref: Marine (Scotland) Act 2010

Purpose and intended effect

• Background

The 6 ^th of April of this year saw the beginning of a new marine licensing regime for Scotland's seas. The new system, provided for by the Marine (Scotland) Act 2010 and the Marine and Coastal Access Act 2009, provides an equitable, efficient and streamlined licensing process for Scotland's seas. The Marine (Scotland) Act covers the region from 0 - 12 Nautical miles (Nm) and the Marine and Coastal Access Act covers the region from 12 - 200 Nm.

The Marine (Scotland) Act provides for Scottish Ministers to prescribe that certain activities or developments should be subject to a pre-application consultation procedure, to be defined in secondary legislation. This would apply to activities or developments at the large scale, with potential for significant effects to the environment, local communities and other legitimate uses of the sea.

It is intended that secondary legislation is laid to specify those activities and to set out the nature of the pre-application consultation. The pre-application consultation will allow conservation groups, members of the public and other interested parties to influence an application for a marine licence at an early stage. It is hoped this will smooth the passage of an application through the licensing procedure, making for a more streamlined, efficient and equitable process.

• Objective

To specify categories of activity or development which will be subject to a pre-application consultation procedure. To ensure beneficial dialogue between developers and other interested parties. To reduce the probability of conflict further on into the licensing process.

• Rationale for Government intervention

Before these measures can be introduced to augment the current licensing system, secondary legislation will need to be laid before parliament. We intend to go out to consultation with internal and external stakeholders in order to inform the detail of this legislation. It is hoped that legislation covering pre-application consultation will be implemented in the summer of 2012.

As the competent authority responsible for all licensing (except for reserved matters) in Scotland's seas, Scottish Ministers have a duty to ensure that the regulatory framework that supports responsible development in Scotland's seas is as efficient, streamlined and equitable as possible. The introduction of pre-application consultation into the marine licensing regime will help to achieve this goal.

As part of the streamlined licensing process, the introduction of pre-application consultation fits into the National Performance Framework by increasing communication between developers and other interested parties at an early stage in the process. This conforms to the National Outcome of making Scotland an attractive place to do business.

Consultation

• Within Government

Colleagues within the Scottish Government have been consulted. No inter-departmental consultation is required, although other administrations ( e.g. DEFRA) will be copied in for information.

Marine Scotland Licensing Operations Team ( MS LOT) were consulted regarding the categories of activity to be included and the nature of the consultation procedure. Final approval of the proposals was approved at Branch Head level.

• Public Consultation

This Partial Business and Regulatory Impact Assessment is produced as part of the 'Consultation on Registerable Marine Activities and on Marine Licence Applications Requiring Pre-Application Consultation', a public consultation covering both activities subject to pre-application consultation and registerable activities (covered in a separate BRIA). This consultation will be launched in the spring for the standard consultation period of 12 weeks.

• Business

Throughout the consultation period, the Scottish Government will meet directly with a range of bodies affected by these proposals. There will be two consultation events held at different locations in Scotland where we will have face-to-face discussions with a number of businesses.

Options

• Option 1.

No introduction of 'Pre-Application Consultation' to the Scottish marine licensing regime. This would result in applications for marine licences, relating to large scale developments, being submitted to MS LOT without the benefit of pre-application consultation.

• Option 2.

Introduce 'Pre-Application Consultation' into the Scottish marine licensing regime. The introduction of pre-application consultation as a statutory requirement for certain classes of activity.

• Sectors and groups affected

Developers carrying out the classes of activity subject to pre-application consultation. Local communities where such large scale developments are planned, other commercial activities in the area, environmental and conservation groups.

Benefits

• Option 1.

Retention of the status quo. Applicants would not be required to adapt to the new system. A small reduction in the overall cost of the application process.

• Option 2.

The introduction of 'Pre-Application Consultation' as a statutory requirement for certain large scale activities is expected to have benefits for both developers and other stakeholders, such as local communities and other commercial interests.

Developers will benefit from early consultation as it will help them to create a high quality application for submission to MS LOT. It allows developers to address concerns held by stakeholders and plan for suitable mitigation for impacts that cause particular anxiety. This approach will make for more efficient determination of licence applications and reduce the risk of objections delaying the process.

Other stakeholders will benefit from pre-application consultation as it will allow them to air concerns early in the process and press for mitigation measures they feel to be necessary. It can also allay concerns that may be based on misconceptions relating to the development concerned.

Costs

• Option 1.

Retention of the status quo. Pre-application consultation is proposed as a method of making the determination of licence applications a more efficient process. An absence of pre-application consultation is likely to lead to complications and delays later in the process, with the associated costs of redeveloping project plans and mitigation measures.

• Option 2.

Some costs will be borne initially by the developer. However, these costs are expected be relatively insignificant due to the proposed nature of the pre-application consultation process which simply involves local advertising and a single public consultation event in a local venue, such as a village hall. Compared to the overall cost of the developments that will be captured by these regulations, this is very small. It is expected that the benefits in terms of expediting the determination process will more than compensate for the costs.

Absolute costs are difficult to establish, because of the variable costs of different venues, etc. A survey of costs has shown that the rental of a venue suitable for a consultation event for a single evening might range between £50 and £1500. The cost of advertising in a local paper is likely to be between £200 and £300.

However, even at the upper end of the scale, these costs are small compared to the total cost of a large scale project, such as a wind farm or bridge.

Scottish Firms Impact Test

Throughout the consultation period, Marine Scotland will meet directly with a range of bodies and businesses affected by the proposals to introduce pre-application consultation, so we can better assess the costs and/or benefits. We will update this section with the results of these discussions post consultation.

• Competition Assessment

We have assumed there will not be any competition impacts as a result of the changes we are proposing and the answers to the Office of Fair Trading's Competition Filter questions below confirm this. We would welcome views on this assumption.

Does the policy:

1. Directly limit the number or range of suppliers?

No.

2. Indirectly limit the number or range of suppliers?

No.

3. Limit the ability of suppliers to compete?

No.

4. Reduce suppliers' incentives to compete vigorously?

No.

• Test run of business forms

No new forms will be introduced as a result of these proposals.

Legal Aid Impact Test

There should be no impact on legal aid issues under these proposals. We have passed this to the Access to Justice Team who are following up with the Legal Aid Board and this section will be updated post-consultation.

Enforcement, sanctions and monitoring

It is not thought likely that the proposals will result in non-compliance. Pre-application consultation is expected to benefit all parties, and any lack of such consultation will become immediately apparent on the submission of an application. An application submitted under such circumstances would be rejected.

The effectiveness of pre-application consultation will be monitored by MS LOT and MS licensing policy officials post implementation and assessed after one year.

Implementation and delivery plan

Sections 23 to 24 of the Marine (Scotland) Act 2010, regarding 'Pre-application Consultation', are expected to be implemented in the summer of 2012.

• Post-implementation review

The performance of the system implemented under the SSI will be assessed one year after its implementation, to ensure that it is fit for purpose.

Summary and recommendation

Option 2 is being recommended due to the clear streamlining and regulatory benefits it will provide.

	Costs	Benefits
Option 1:	Likelihood of lengthier, more problematic process	No new system, no consultation costs
Option 2:	Rental of consultation venue and advertising	Early identification of potential issues, more efficient determination.

Declaration and publication

I have read the 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

Signed:

Date:

Richard Lochhead, Cabinet Secretary for Rural Affairs and the Environment

Scottish Government Contact point: Matt Cartney 46231