Marine licensing and consenting: offshore renewable energy projects

Licensing and consenting requirements for offshore renewable energy

A range of marine licensing and consenting requirements are likely to be required at all stages of offshore renewable energy projects (wind, wave and tidal).

Requirements for offshore generating stations and transmission infrastructure

Offshore renewable energy generating stations and transmission infrastructure may require the following consents, licences and assessments:

• section 36 consent to construct, operate or extend a generating station (depending on capacity)
• section 36A declaration to extinguish navigation rights at the place of the generating station (withing 0-12 nm if required by applicant)
• marine licence to construct, alter or improve any works (always required for generating station and transmission infrastructure)
• marine licence  to remove any substance or object from the seabed (for example may be required for seabed clearance, boulder removal, drilling)
• marine licence to deposit substances or objects (for example may be required for the deposit of dredged material, deposit of drilled material, deposit of moorings)
• marine licence to carry out any form of dredging (for example may be required for seabed preparation)

• marine licence to use any explosive substance or article (for example may be required for unexploded ordnance clearance)
• marine licence exemptions may apply to certain activities.

• safety zones (may be declared for a renewable energy installation, which includes generating station and transmission infrastructure)
• decommissioning programme (for the relevant objects, where a section 105 Notice has been served, for generating station and transmission infrastructure)

• Environmental Impact Assessment (may be required in support of section 36 consent and marine licence applications)

• Habitats Regulations Appraisal (may be required in support of section 36 consent and marine licence applications)
• Marine Protected Area assessment (may be required in support of section 36 consent and marine licence applications)
• statutory Pre-Application Consultation (for relevant marine licence applications)
• licence to disturb a European Protected Species or basking shark (may be required)

Prospective applicants should consider the timing of their section 36 consent and marine licence applications for offshore generating stations and transmission infrastructure to ensure that all supporting information required to make a determination can be provided. High quality applications, made at the right time, will support MD-LOT to meet target determination times, allow stakeholders to make informed representations and reduce the risk of requiring additional information.

In addition to the section 36 consent and marine licence for the generating station and transmission infrastructure, other activities, associated with offshore renewable energy generating stations and transmission infrastructure, are also likely to have licensing requirements. These other regulated activities may be carried out at all phases of the project for example during the planning and design, construction, operation and decommissioning phases.

Prospective applicants should consider when to apply for the relevant licences and what activities should be included. It may be more efficient to apply for certain activities (e.g. seabed clearance activities, grapnel run) with the application for the generating station and transmission infrastructure. This would mean that further applications for marine licences would not be required at, during or after the construction phase. However, if the detail that is necessary for an application is not available at the time of the application for the generating station and transmission infrastructure, marine licence applications can still be made when required e.g. for unexploded ordnance clearance.

Requirements for decomissioning

Separate marine licences are likely to be required for the decommissioning of offshore renewable energy generating stations and transmission infrastructure (marine licences are required for the alteration of works).

Section 36 consent

Consent under section 36 of the Electricity Act 1989 is needed to construct, operate or extend a generating station where it is greater than 1 megawatt and located within the Scottish territorial sea (0-12 nm) or where it is greater than 50 megawatts and located in the Scottish part of a Renewable Energy Zone (12 to 200 nm). Section 36 consent is not required for transmission infrastructure. Applications for section 36 consent should be made at the same time as the application for the marine licence for the construction of the generating station.

Section 36 consent for the construction, extension or operation of an offshore renewable energy generating station will be in place for the operational life of the infrastructure.

Marine licence

A marine licence is required to construct, alter or improve works, such as an offshore renewable generating station and transmission infrastructure. A marine licence is required under the Marine (Scotland) Act 2010 for licensable marine activities inside 12 nm or the Marine and Coastal Access Act 2009 for licensable marine activities between 12 and 200 nm.

The marine licence to construct, alter or improve an offshore renewable generating station or transmission infrastructure will be in place for the operational life of the infrastructure.  

Marine licence exempted activities

Certain activities are exempt from the requirement to obtain a marine licence where certain conditions are met.

The collection of sediment samples, the deposit of scientific instrumentation, the deposit of aids to navigation are all potentially exempted activities. Prospective applicants are advised to familiarise themselves with the exempted activities guidance and follow any notification or approval steps required.

Statutory pre-application consultation (PAC)

Statutory Pre-Application Consultation (PAC) is required for certain prescribed licensable marine activities in the Scottish inshore region (0-12 nm).

Prospective applicants should consider the timescales for the statutory PAC and notification process, which takes a minimum of 12 weeks and must be completed before a marine licence application is submitted.

Environmental impact assessment (EIA)

Projects requiring section 36 consent and marine licences may require an Environmental Impact Assessment (EIA) under the relevant EIA Regulations.

If an EIA is required prospective applicants should consider pre-application timescales required for the EIA process.

Habitats regulation appraisal (HRA)

MD-LOT may be required to carry out a Habitats Regulations Appraisal (HRA) before issuing an authorisation, including section 36 consents and marine licences. If the proposed project is likely to have a significant effect on a European site then applications must include information to inform an Appropriate Assessment. Information may also be required to inform a derogation case if there are adverse effects to site integrity.

Prospective applicants should engage the relevant stakeholders at the pre-application stage to advise on information that may be required to support an HRA.

Marine Protected Area (MPA) assessment

MD-LOT may be required to carry out a Marine Protected Area (MPA) assessment before issuing an authorisation, including section 36 consents and marine licences.  Where the proposed activity is capable of affecting an MPA applications must include information to inform the MPA assessment.

Prospective applicants should engage the relevant stakeholders at the pre-application stage to advise on information that may be required to support the MPA assessment.

Safety zones

Under section 95 of the Energy Act 2004 Scottish Ministers have the power to issue a notice declaring a safety zone around or adjacent to an offshore renewable energy installation in Scottish territorial waters (0-12 nm) and waters in the Scottish Renewable Energy Zone (12-200 nm). The definition of an offshore renewable energy installations can be found in section 104 of the Energy Act 2004.

If safety zones are required, prospective applicants should consider the timing of their application to ensure that required safety zones are in place prior to construction starting.

Declaration as respects rights of navigation

Under section 36A of the Electricity Act 1989 Scottish Ministers have the power to make a declaration, on application, which extinguishes or suspends rights of navigation in Scottish territorial waters (0-12 nm).

The declaration can only be made at the same time as a section 36 consent is granted for the construction, operation or extension of a generating station in Scottish territorial waters (0-12 nm). The declaration extends only to the actual generating stations, not the wider development area, it does not apply to any transmission infrastructure.

Where a prospective applicant wishes to apply for a section 36A declaration as respects rights of navigation, the application must be made at the same time as the section 36 consent application for the construction and operation of a generating station.

Decomissioning programme

Section 105 of the Energy Act 2004 gives Scottish Ministers the power to issue a section 105 notice which requires the responsible person to prepare a decommissioning programme for a relevant object.

Where a section 105 notice has been served, an approved decommissioning programme for the generating and transmission infrastructure must be in place before construction can start.

The process for the decommissioning programme will take place after the section 36 consent and marine licence has been issued, but prior to the commencement of construction.

European protected species and basking sharks

A licence to disturb or injure a European Protected Species (EPS) or a basking shark is required to cause disturbance or injury to a marine EPS or a basking shark.

Marine licensing and licensing to disturb EPS or basking sharks are separate regimes. Where any activity, marine licensable or otherwise, may disturb or injure an EPS or a basking shark, a licence to disturb or injure an EPS or a licence to disturb a basking shark will be needed. Having a marine licence does not negate the need for a licence to disturb or injure an EPS or basking shark.

Examples of activities associated with the construction and operation of offshore renewable energy generating and transmission infrastructure that may disturb or injure an EPS or basking shark include:

• geophysical surveys
• piling of foundations
• unexploded ordnance clearance

Timescales for determination should be taken into account when applying for an EPS or basking shark licence.

Relevant policies

Policies relevant to an activity are considered by MD-LOT when determining a marine licence application.

When applying for a marine licence or section 36 consent for an offshore renewable energy generating station and transmission infrastructure, prospective applicants should be aware of how a proposed activity contributes to meeting any relevant policies.

Policies and plans relevant to the construction, operation and decommissioning of offshore renewable energy generating stations and transmission infrastructure include:

• UK Marine Policy Statement
• Offshore Wind Policy Statement
• Scotland’s climate change plan 2018–2032 - update
• Scottish Energy Strategy
• Draft Energy Strategy and Just Transition Plan
• Scotland's National Marine Plan
• Sectoral Marine Plans for Wind, Wave and Tidal Energy
• Scottish Regional Marine Plans
• Blue Economy Vision for Scotland
• National Planning Framework
• Scottish Biodiversity Strategy
• joint interim position statement on unexploded ordnance clearance

Gap analysis

A gap analysis  is used to ensure that any comments raised by consultees are considered and addressed by Developers prior to the determination of applications or in assessing any information provided as a result of marine licence or section 36 consent conditions.

A gap analysis will be applied at three stages in the licensing and consenting process:

Stage one: Application

Marine licence and section 36 consent applications for offshore renewable energy generating stations and transmission infrastructure should include a gap analysis. This provides a log of the issues raised in the EIA scoping opinion and actions taken in respect of each issue with reference to the relevant section of the EIA Report. A gap analysis template is provided with EIA scoping opinions and should be used and submitted with applications.

Stage two: Application consultation

The application including all supporting information (e.g. EIA report, HRA report, MPA report, mitigation and monitoring plans) will be subject to consultation. All consultee comments will be passed to the applicant. The applicant will then create a gap analysis that provides information on how consultee comments have been taken into account together with evidence of satisfactory resolution. MD-LOT will review this gap analysis and identify where issues have not been addressed or have not been addressed in a sufficiently complete way. Applicants will be advised to rectify these gaps prior to determination of the application.

Stage three: Assessing information provided as a result of marine licence or section 36 consent conditions (post-consent)

Marine licences and section 36 consents may have conditions that require information such as mitigation and monitoring plans to be submitted for approval, prior to construction starting. MD-LOT may consult stakeholders when assessing such information.  All consultee comments will be passed to the developer. The developer will create a gap analysis that provides information on how consultee comments have been taken into account together with evidence of satisfactory resolution. MD-LOT will review the gap analysis and identify where issues have not been addressed or have not been addressed in a sufficiently complete way. The developer will be advised to rectify these gaps prior to a decision on the approval of the information.