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

4. Application

The following section describes the application process.

Following the requirements described in the preceding Gate Checking section 3.5, final applications for consents/licences (following gate check) should be made to Scottish Ministers and applicants should ensure that they include:

• A covering letter (highlighting what is being applied for and by whom);
• All relevant completed application forms (as advised by MS-LOT) and associated public notices;
• All relevant documentation, EIA Report (including non-technical summary) and other supporting assessments (HRA, NRA etc.);
• All appendices as appropriate (as advised by MS-LOT, if necessary);
• Site drawings with a red line boundary;
• Pre-application consultation report (PAC) if required
• Gap analysis
• Any additional information that has been requested during the pre-application consultation process; and
• Payment for the full cost of the consenting and licensing process.

4.1 Environmental Impact Assessment Report

4.1.1 Submission of EIA report by the applicant

The EIA Report is the written output of the EIA process. The EIA Report should be presented as a complete document and must demonstrate that all potentially significant impacts have been assessed, any limitations (data, assessment process etc.) have been recognised and explained, and all residual impacts identified. The information submitted must be sufficient for Scottish Ministers to determine the application.

The EIA Report must contain the information specified in the EIA Regulations:

(a) a description of the development comprising information on the site, design, size and other relevant features of the development;
(b) a description of the likely significant effects of the development on the environment;
(c) a description of the features of the development and any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;
(d) a description of the reasonable alternatives studied by the developer, which are relevant to the development and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the development on the environment;
(e) a non-technical summary of the information in (a) to (d) above
(f) any other information specified in schedule 4 of the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (or schedule 3 of the Marine Works (Environmental Impact Assessment) Regulations 2007 for projects out with 12 nm) and schedule 4 of the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 which are relevant to the specific characteristics of the development and to the environmental features likely to be affected.

The factors which need to be considered in the EIA Report are as follows:

(a) population and human health;
(b) biodiversity, and in particular species and habitats protected under the Habitats Directive and Wild Birds Directive.
(c) land, soil, water, air and climate; and
(d) material assets, cultural heritage and the landscape.

The assessment must include the expected effects deriving from the vulnerability of the development to risks of major accidents and disasters, in so far as relevant to the development.

The developer must ensure that the EIA Report is prepared by competent experts, and must be accompanied by a statement from the developer outlining the relevant expertise or qualification of the experts. The developer is required to submit 2 hard copies of the EIA Report (plus further hard copies if required) and an electronic copy.

If a scoping opinion has been issued, the developer must ensure that the EIA Report is based on the scoping opinion. The EIA Report must take into account current knowledge and methods of assessment.

On receipt of the EIA Report, Scottish Ministers will inform the applicant whether the requirements of the EIA Regulations have been met, and approve dates for the public notices to be placed in order to allow for public representations. Section 4.10 provides further information in relation to public notices.

Within 2 weeks of receiving the EIA Report Scottish Ministers will provide the consultees, and any other public body which in their opinion is likely to be concerned by the proposed development by reason of that body's specific environmental responsibilities, with a copy of the document or will direct the applicant to do so. A period of 30 days will be allowed for consultation, although consultees may request an extension to this period which must be approved by Scottish Ministers.

The applicant must also make a reasonable number of copies of the EIA Report available to the public at places named in the public notice. If a member of the public requests a copy of the EIA Report a reasonable cost, reflecting printing and distribution costs, may be charged.

4.1.2 Detail on EIA Report

Non-Technical Summary: The non-technical summary should be a stand-alone document and is particularly important for ensuring that the public can comment fully on the EIA Report. It should be clear, concise and written in a non-technical language to be accessible to the lay reader. It should be a fair reflection of the main EIA Report and should cover all aspects of the EIA process, not just a summary of the potential impacts. It should inform readers of the environmental effects of the project and proposed mitigation measures and monitoring requirements. The use of graphics to illustrate issues is recommended, rather than the use of lengthy text.

Abbreviations, Acronyms and Glossary: A list of the abbreviations and acronyms used should be provided, together with a glossary to define any technical terms used within the EIA Report.

Introduction: This section should be used to introduce the project (briefly), the legislative policy and context within which the EIA is undertaken and the purpose and scope of the EIA Report. It should also include a list of the contributors to the EIA and their relevant experience.

Alternatives: This section should include a full assessment of the alternatives that were considered for the proposed project. This could include alternatives sites, technologies and preliminary designs. The main reasons for selecting the chosen option should be provided. If no alternatives were considered, then this should be stated.

Description of the Proposed Development: The project should be described in sufficient detail and include site design and size or scale of the development in order to allow potential environmental impacts to be identified. This section should include consideration of installation and commissioning; operation and maintenance; and decommissioning aspects of both onshore and offshore facilities.

Environmental Baseline: The environmental baseline should describe the characteristics for each of the relevant receptors and highlight any particularly sensitive receptors or areas. These are usually split into receptor topics. Developers must have a sound understanding of all the different environmental aspects which could be significantly affected by the proposals and which must therefore be assessed through the EIA. The environmental description should include the physical, biological and human aspects of the environment, to provide a background of environmental conditions prior to development.

EIA Methodology, Scoping and Consultation: The explanation of EIA methodology should include each stage of the EIA process that the development went through covering screening, scoping and consultation, both formal and informal, to the assessment of potential impacts. The method by which the magnitude of effect is assessed should be defined, i.e. under which circumstances an impact is considered to be significant as well as any specialist studies which were undertaken. Details of all the consultation undertaken as part of the EIA, leading up to application, should also be documented (including how any concerns/issues have been addressed). The EIA Report must include a detailed table on how, and where, issues within the EIA Report have been addressed.

Assessment of Potentially Significant Impacts: Assessment of the potentially significant impacts which were highlighted during the EIA should be addressed in this section using the methodology defined in the previous section. This should include reference to specific studies which may need to be included as technical annexes/appendices to the EIA Report. Depending on the scale of the project, it may be easier for the applicant to address key issues as separate sections within the EIA Report. The assessment section should be split into the key receptor/topic areas and include any mitigation which will be implemented to reduce environmental effects. The residual impacts including mitigation should be clearly defined using the EIA methodology. The assessment of cumulative/in-combination effects should also be documented within the assessment chapters. See section 3.3.3 for further information on cumulative effects. Data gaps and uncertainties identified during the EIA should be included within this section.

Mitigation: Methods or actions that will be implemented to reduce/avoid significant adverse environmental effects. Mitigation measures are most successful when they are considered from the outset of the project rather than as a late stage solution. Therefore, in some cases, mitigation can be incorporated into the project design through embedded impact avoidance or reduction measures. Mitigation required during the construction, operational and decommissioning phases of a project should be precisely defined to ensure developers understand their commitments (i.e. they should not be generalised) and in order to give confidence and certainty to consultees and Scottish Ministers. Where mitigation is to be relied upon to reduce the effects of the development, this should be deliverable and based on proven evidence. It is considered to be of benefit that all of the mitigation measures that have been identified throughout the EIA Report should be summarised in a dedicated chapter.

Monitoring: Monitoring measures must be incorporated into a consent or licence for a project if the project is likely to have significant adverse effects on the environment. Therefore monitoring measures proposed should be included in the EIA Report. Monitoring measures may be linked to other legal requirements, such as those identified within an AA. Monitoring measures should be linked to ensuring that mitigation measures are being carried out successfully. Monitoring provides an opportunity to identify whether forecasted impacts are developing as predicted, so that steps may be taken for remedial action if Scottish Ministers consider this appropriate. Monitoring measures should be specific and detailed enough to ensure their implementation, in some cases joint monitoring of projects within a region may be appropriate (see section 6.5.3 on regional advisory groups).

4.1.3 Additional Information

Scottish Ministers must satisfy themselves that the submitted EIA Report contains the information specified in the EIA Regulations. Where the required information has not been provided, the Scottish Ministers must, having regard in particular to current knowledge and methods of assessment, seek from the developer supplementary information about a matter to be included in the EIA Report which they consider is directly relevant to reaching a reasoned conclusion on the significant effects of the development on the environment. Any information provided in response to such a written request must be publicised, and consulted on, in a similar way to the EIA Report.

Where a developer has voluntarily submitted any other information which, in the opinion of the Scottish Ministers, is substantive information about a matter to be included in the EIA Report, that information should be advertised, sent to the consultation bodies, and taken into account in reaching a decision on the application. It is worth highlighting again that, where additional information is required, it will not be possible to meet the target application deadline (9 months for consent applications).

4.1.4 Verification of information in an EIA Report

Scottish Ministers can require a developer to produce such evidence as they may reasonably call for to verify any information in the EIA Report or such additional information as the case may be. Any such request for evidence will be made in writing.

4.2 Information for Appropriate Assessment

Information provided by the developer should be reported as 'Information for Appropriate Assessment (AA)' where the analysis, results and evidence based justification is summarised and presented strictly in regard to the predicted effects and how they relate to the conservation objectives of the relevant European sites.

The AA will come to a conclusion on whether the proposal will adversely affect the integrity of the site. If it is demonstrated that there will be no adverse effect on site integrity, and that is the case where no reasonable scientific doubt remains then consent may be granted. If this cannot be demonstrated consent will not be granted unless

• There are no alternative solutions,
• There are imperative reasons of over-riding public interest
• Any necessary compensatory measures are taken to secure the coherence of the European site network.

4.3 Information for Marine Protected Areas Assessment

If the scoping opinion advises that the project is capable of affecting, other than insignificantly, the features of an MPA, the EIA Report should include the information to inform an MPA assessment. This information will vary depending on the protected feature but advice in the scoping opinion must be followed.

Where it is considered that a project is capable of affecting, other than insignificantly, the features of an MPA the Public Authority ( which is the Scottish Ministers for marine licences and s.36 consents) must complete an MPA assessment in consultation with SNH / JNCC in the case of a nature conservation MPA (or HES in the case of a historic MPA).

Scottish Ministers must not grant consent for the project unless satisfied that there is no significant risk of hindering the achievement of:

a) the stated conservation objectives for the Nature Conservation MPA,
b) the stated purpose for the Demonstration and Research MPA,
c) the stated preservation objectives for the Historic MPA,

The conservation objectives for the nature conservation MPAs are either to conserve or restore the protected features, details are available on the SNH website for nature conservation MPAs within 12 nm and the JNCC website for MPAs from 12-200 nm. Further information on historic MPAs is available from the HES website.

If there is a significant risk of the project hindering the achievement of the conservation objectives then a licence or consent will only be granted if:
a) Scottish Ministers are satisfied that there is no other means of proceeding with the project which would create a substantially lower risk of hindering the achievement of those objectives.
b) Scottish Ministers are satisfied that the benefit to the public of proceeding with the project clearly outweighs the risk of damage to the environment that will be created by proceeding with it.
c) Scottish Ministers are satisfied the developer will undertake, or make arrangements for the undertaking of, measures of equivalent environmental benefit to the damage which the project will or is likely to have in or on the MPA concerned.

4.4 Information for European Protected Species

Guidance on EPS licence requirements is available as set out in section section 3.3.7 above. An EPS licence application (under Regulation 44 (2) of The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) or 55(6) of The OMRs 2017 may be submitted alongside marine licence and s.36 applications and should include a detailed assessment of risk to allow MS-LOT to make a decision on whether a licence should be granted. MS-LOT can issue EPS licences if the following strict criteria are met:

• there is a licensable purpose as described in the Regulations
• there are no satisfactory alternatives;
• the actions authorised will not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range

4.5 Information for basking shark licensing

A Basking shark licence may be required as set out in section 3.3.8 above. MS-LOT can only grant licences if it is satisfied:

a. That undertaking the conduct authorised by the licence will give rise to, or contribute towards the achievement of, a significant social, economic or environmental benefit; and
b. there is no other satisfactory solution.

The assessment of what would constitute a social, economic or environmental purpose is generally understood. However, in terms of the two subsequent criteria (a) and (b) above, it is useful to consider aspects of the licence assessment process (section 3) in the following guidance: Protection of Marine European Protected Species from Injury and Disturbance.

4.6 Information for TraC-MImAS

Under the Water Framework Directive the UK and Republic of Ireland are required to manage hydromorphological change as a result of human activity to prevent ecological deterioration transitional and coastal waters. The Transitional and Coastal waters Morphological Impact Assessment System (TraC-MImAS) is a risk based decision support tool which helps regulators identify projects that may result in a deterioration of water body status as a result of hydromorphological changes. The assessment is geographically limited to aspects of projects within 3 nm of the coast.

TraC-MImAS will be used to help assess the impact of a new project on the system capacity of the waterbody into which the proposed project will be built. This assessment is currently carried out by MSLOT with results provided to SEPA for Water Framework Directive reporting. The assessment examines the total footprint of a project based on the individual types of pressures that may be applied to a waterbody from a new development.

The assessment requires details of a proposed project's built footprint, including morphological changes such as dredging. The application should include the spatial layout of any planned construction or morphological changes, for example, device location and individual footprints, cable routes, any protection work or dredging activity. More details may be requested by MSLOT as required.

Where an assessment indicates a potential impact, the proposal will be reviewed in accordance with regulatory guidance and current case law and Marine Scotland would seek expert advice to categorise the actual impact and what mitigation may be required.

4.7 Navigation Risk Assessment

An NRA should be produced as a stand-alone document to support the application, and a Preliminary Hazard Analysis may also be required. This needs to be specific to the device(s) and the area to which the applications refer, and should address all potential navigational effects on other users of the sea, including both commercial and leisure users. All efforts should be made to access as much up-to-date information as possible on vessel passage in, and other users of, the areas that will be affected by the proposed development. A summary of the NRA should be included within the EIA Report.

Various international treaties and conventions relating to safety, laws of the sea and pollution apply to shipping and ports. The UK Government has a responsibility to ensure that measures are implemented in order to honour its commitments to these protocols; not least of these is the UK's responsibility under Article 60(7) of the United Nations Convention on the Law of the Sea relating to provisions for 'Artificial islands, installations and structures in the exclusive economic zone'. An NRA is one process by which the necessary evaluations of the implications of developments can be made.

Within UK territorial waters, the UK Government upholds the right of innocent passage as defined in Article 17 of the United Nations Convention on the Law of the Sea. Beyond the 12nm limit of UK territorial waters, shipping has the freedom of navigation. The regulation of shipping should be carried out by the 'flag state control' operated by the country in which the ship is registered. As this has proved unsatisfactory, 'port state control' has become common in national jurisdictions. Under this regime, the UK Government (represented by the inspection division of the MCA) exercises the rights of the port state to inspect and, if appropriate, to detain sub-standard ships.

The MCA is a consultee in the consent process for all UK offshore renewable energy projects and will liaise with developers and stakeholders. The Northern Lighthouse board is also a consultee and will respond on navigational requirements including aids to navigation.

MCA Marine Guidance Notes (MGN) should be closely followed. In particular, the agreement of the MCA to the construction of an offshore renewable energy project is dependent on the project meeting relevant navigational safety and emergency response requirements as contained within MGN 543, the MCA's Offshore Renewable Energy Installations: Requirements, Guidance and Operational Considerations for Search and Rescue and Emergency Response and the Emergency Response Co-operation Plan (ERCoP). Guidance is available to Mariners operating in the vicinity of UK offshore renewable energy projects through MGN 372, whilst applicants should also be aware of MCA guidance on Offshore Renewable Energy Installations: impact on shipping. The marking of offshore wave and tidal energy installations will be based on recommendations of the International Association of Marine Aids to Navigation and Lighthouse Authorities (IALA). Guidance on the marking of offshore structures is available on the IALA website

Section 99 of the Energy Act 2004 deals specifically with navigation and, in combination with Section 36B of the Electricity Act 1989, stipulates that a consent cannot be granted for an offshore renewable energy project which is likely to interfere with the use of 'recognised sea lanes essential to international navigation.

Sea ports and harbours provide the interface between the land, near-shore and open sea. The majority of port operations are administered by Statutory Harbour Authorities, which are governed by harbour-specific legislation tailored to the needs of each port. A range of national legislation places statutory responsibility on the harbour master to ensure navigation and safety within the harbour limits, this includes the 'Harbours, Docks and Piers Clauses Act 1847' and the 'Docks and Harbour Act 1972'. Under such legislation, the harbour master may issue general or specific directions to control movements of vessels within their harbour area in order to ensure safety. Harbour Authorities who have the power to issue work licenses under provisions in their special act(s) may choose to apply conditions including the completion of an NRA for developments in their areas.

4.8 Information for Fishing Impact Assessment

In line with the National Marine plan, the following factors need to be taken into account when assessing impacts on fishing:

• The cultural and economic importance of fishing, in particular to vulnerable coastal communities.
• The potential impact (positive and negative) of marine developments on the sustainability of fish and shellfish stocks and resultant fishing opportunities in any given area.
• The environmental impact on fishing grounds (such as nursery, spawning areas), commercially fished species, habitats and species more generally.
• The potential effect of displacement on: fish stocks; the wider environment; use of fuel; socio-economic costs to fishers and their communities and other marine users.

As part of the preparation of the Environmental Statement, the developer must fully engage with local fishing interests (and other interests as appropriate). Guidance on communication between developers and the fishing sector comes in the form of the FLOWW Best Practice Guidance for Offshore Renewables Developments: Recommendations for Fisheries Liaison. The Environmental Statement should contain transparent and accurate information and data to help Scottish Ministers in the determination of the project.

The content of the Environmental Statement should be relevant to the particular circumstances and could include:

• An assessment of the potential impact of the development or use on the affected fishery or fisheries, both in socio-economic terms and in terms of environmental sustainability.
• A recognition that the disruption to existing fishing opportunities/activity should be minimised as far as possible.
• Reasonable measures to mitigate any constraints which the proposed development or use may place on existing or proposed fishing activity.
• Reasonable measures to mitigate any potential impacts on sustainability of fish stocks (e.g. impacts on spawning grounds or areas of fish or shellfish abundance) and any socioeconomic impacts.
• Where there is any divergence of views between the parties, this should be fully explained in the Environmental Statement with both sides views put forward.

4.9 Fees

Marine licence applications and s.36 applications will be subject to fees to recover costs incurred during the consenting and licensing process. However, if it is necessary for MS-LOT to carry out any additional investigations, examinations or tests to enable determination of a marine licence application, the applicants will be required to pay an additional fee towards such costs. It should be noted that fees may be incurred for marine licence applications for pre-construction activities. Both marine licence and s.36 fees vary according to the type of licence and consent being applied for, and the scale of the proposed works. Current marine licence and S.36 application fees can be found on the Marine Scotland website. The fee payable for safety zone applications is set out in the Electricity (Offshore Generating Stations) (Safety Zones) (Application Procedures and Control of Access) Regulations 2000.

4.10 Consultation/Public Notices

There are consultation and publication requirements for an application to the Scottish Ministers for:

• consent under section 36 of the Electricity Act 1989;
• a declaration under section 36A of the Electricity Act 1989;
• a marine licence under section 20 of the Marine (Scotland) Act 2010;
• a marine licence under section 65 of the Marine Coastal Access Act 2009;
• deemed planning permission under section 57(2) of the Town and Country Planning (Scotland) Act 1997;
• additional information in relation to EIA projects;
• decisions in relation to renewable energy projects.

On acceptance of an application, MS-LOT will advise the applicant of the publicity requirements and guide the applicant to the relevant public notice template. Applicants should send a completed draft public notice template to MS-LOT for approval at least two weeks prior to publication.

All marine licence applications require public notice advertising, which should be agreed with MS-LOT. For marine licence applications for EIA development within 12 nm, MS-LOT will direct the applicant to publish a public notice in the Edinburgh Gazette, and such newspapers and fisheries publications as are likely to come to the attention of those likely to be affected by the proposed project. MS-LOT will place the notice on the Marine Scotland website. Any persons wishing to make representations to the application must do so within 30 calendar days. Additional information submitted under the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 must be publicised in the same manner.

From 12-200 nm, MS-LOT will direct the applicant to publish a public notice for two successive weeks in such newspapers or other publications as it thinks fit. If the proposed project is likely to have significant effects on the environment in another EEA State, a public notice must also be placed in the Edinburgh Gazette. MS-LOT will place the notice on the Marine Scotland website. Any persons wishing to make representations to the application must do so within 42 calendar days (2007 Marine Works EIA Regulations). Further information submitted under these regulations must be publicised in the same manner.

Notice of s.36 applications must be published in the Edinburgh Gazette, such newspapers as are likely to come to the attention of those likely to be affected by the proposed project, and one or more national newspapers (e.g. The Herald, Scotsman). MS-LOT will place the notice on the Marine Scotland website. Any persons wishing to make representations to the application must do so within 30 calendar days. Additional information submitted under these regulations must be publicised in the same manner, less the requirement for a public notice in the national newspaper.

The information to be included in the public notices is detailed in the EIA Regulations and reflected in the templates available on the Marine Scotland website.

The applicant must provide MS-LOT with copies of all adverts as published. These may be originals or scanned copies which must show the name and date of the publication. MS-LOT will forward all responses from the consultees to the applicant and inform the applicant of any approved extensions. MS-LOT will send the statutory consultee responses to the relevant Planning Authority and any other responses requested.

To ensure compliance with the relevant legislation, applicants should ensure that the points below are followed. If any of the legislative publicity requirements are not met, the public notice will need to be re-publicised:

• Ensure that any instructions given by MS-LOT are followed – a number of publicity requirements are set down in legislation and MS-LOT will advise and instruct on these on acceptance of an application;
• Complete a draft public notice using the templates provided. Applicants must input the requested information into the draft template (bracketed sections in bold e.g. [Applicant] require to be completed). Applicants should check that all details are accurate;
• Ensure accessible locations. The specified locations must be as close as practicable to communities likely to be affected by the development and readily available to members of the public;
• Double check dates. Correct dates are used within the advert;
• Factor in public holidays. When stating the deadline date for receipt of representations, applicants should consider any local or national Public Holidays which may affect this deadline;
• Submit a draft public notice for approval by MS-LOT. A draft public notice should be submitted to MS-LOT for approval at least 2 weeks in advance of the publication date.
• Provide documents on time. The documents listed in the public notice must be made available at the time stated and at the location(s) specified.
• Submit the public notice as published. Copies of the published notice(s), showing the date(s) and name(s) of publication, should be submitted to MS-LOT within 2 weeks of publication.

Formal consultation with consultees will follow the same timeframes for public representations as detailed above under the different EIA Regulations.

Public notices are also required for variation applications (see section 6.2)

4.10.1 Representations

The licensing authority must have regard to any representations which it receives from any person having an interest in the outcome of the application. Any unsolicited responses will be sent to the developer to be addressed.

Further information on how representations will be handled can be found on the Scottish Government Website.

4.11 Public Local Inquiry (PLI)

If a s.36 application contains an onshore element of an offshore generating station, a maintained objection from a planning authority will automatically trigger a PLI, which will be confined to the onshore element of the application. Paragraph 7A(7) of Schedule 8 to the Electricity Act 1989 gives the Scottish Ministers powers of direction in relation to the scope of any PLI.

In addition, paragraph 3(2) of Schedule 8 to the Electricity Act provides that where objections, or copies of objections, have been sent to the Scottish Ministers in pursuance of the Electricity (Applications for Consent) Regulations 1990, in those cases where an automatic PLI is not triggered, then the Scottish Ministers "shall consider those objections together with all other material considerations" with a view to determining whether a PLI should be held with respect to the application. If they think it appropriate to do so, they shall cause a PLI to be held.