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

6. Post-Determination

6.1 Judicial Review

Although the decision of the Scottish Ministers in relation to s.36 applications is final, it is subject to the right of any aggrieved person to apply to the Court of Session for judicial review. Judicial review is the mechanism by which the Court of Session supervises the proper exercise of administrative functions, including how the Scottish Government carries out its statutory function to grant or refuse consents.

Guidance on the judicial review process can be found on the Scottish Courts website. It should be noted that there is a 3 month time limit on seeking judicial review.

6.2 Appeals

Any applicant for a Marine Licence is entitled to appeal against a decision not to grant a licence or against any of the conditions attached to a licence for both the Scottish inshore and offshore regions. The Marine Licensing Appeals (Scotland) Regulations 2011 provide that an applicant may bring such an appeal by way of summary application. The Sheriff Court provides an independent and impartial forum for these appeals. The rules applicable to the summary application process can be found on the Scottish Courts website. Under these rules, the deadline for lodging an appeal is 21 days after intimation of the decision in question and applicants will need to bear this in mind in deciding on the best way forward.

6.3 Variation of Consent

The Growth and Infrastructure Act 2013 inserted a new section 36C into the Electricity Act 1989 which introduces a procedure for applications to vary s.36 consents and for planning permission to be deemed in connection with such applications.

Regulations came into force on 1 December 2013 and provide for variation applications to take place in a way that follows closely the existing rules for applications for s.36 consents, and which ensures that the relevant provisions of the EIA Directive (2011/92/EU) (as amended) are also implemented for s.36 variation applications as they currently are for a s.36 consent.

The aim of the variation process is to reduce the time that might otherwise be taken to consider the authorisation of a development which for some reason now needs to differ from that set out in an existing s.36 consent, and would therefore not be consistent with that consent. It is not intended to relax the standards to which a consent must conform. Nor is it intended as a way of authorising any change in a developer's plans that would result in development that would be fundamentally different in terms of character, scale or environmental impact from what is authorised by the existing consent.

If a developer is unsure whether their intended plans would constitute a development that would be fundamentally different in terms of character, scale or environmental impact from what is authorised by the existing consent, then they should contact MS-LOT for advice.

The procedure is set out in the Electricity Generating Stations (Applications for Variation of Consent) (Scotland) Regulations 2013 (as amended by the Electricity Works (Environmental Impact Assessment) (Scotland) Amendment Regulations 2017 ("the Variation Regulations") and the accompanying guidance note. The Variation Regulations provide for a consistent and transparent process for the making and publicising of applications to vary s.36 consents, and their subsequent consideration.

In order to determine whether EIA is required for a variation application, applicants should request a screening opinion if the proposed changes may have significant adverse effects on the environment. If EIA is required then MS-LOT advise that a scoping opinion should be requested.

The guidance note sets out current views on how the legislation should operate. It should be noted that the guidance covers both onshore and offshore s.36 applications but that references to the Energy Consents Deployment Unit ("ECDU") should be read as MS-LOT for applications for offshore renewable energy developments.

Although the guidance note estimates that in the most straightforward cases, where the changes being proposed are minimal it may take around 4-5 months for a variation determination, and in more complex cases it could take 9 months or longer, past experience has shown that 9 months is the minimum a variation application will take to be determined if EIA is required.

6.4 Variation of Marine Licence

A marine licensee can make an application to MS-LOT seeking variation of a licence, but only where such changes are not material, as per s.30 of the Marine (Scotland) Act 2010. De minimis amendments can be made to applications and licences at any time. Changes to a licence to reduce the level of activity can be made within the process without further consultation. Applications to vary a marine licence can only be processed where changes are small enough to be considered not material.

If changes required are considered to be material, a new application may be required and a licensee should contact MS-LOT to establish the potential need for a new application.

No such provisions are made in the Marine and Coastal Access Act 2009 for licensees to apply for a variation. However, the licensing authority may vary a marine licence if it appears to them that the licence ought to be varied for any relevant reason. Licensees wishing to vary a marine licence granted under the 2009 Act must therefore contact MS-LOT to establish any requirement for a new application to be made. Where a marine licence has an associated s.36 consent and the s.36 consent is varied by Scottish Ministers, then Scottish Ministers will consider exercising their discretion to vary the marine licences granted in respect of the development in terms of section 72 (3) (d) of the Marine and Coastal Access Act 2009 and section 30(3)(d) of the Marine (Scotland) Act 2010 to ensure that the marine licence and consent granted under section 36 of the Electricity Act 1989 (as amended) are consistent. In order to provide consistency in approach and transparency to the procedure MS LOT will deal with variations, suspensions, revocations and transfers of all marine licences (both under the Marine (Scotland) Act 2010 and the Marine and Coastal Waters Act 2009) in accordance with the procedures laid down in s.31 of the Marine (Scotland) Act 2010.

Public notices are required for s.36 variation applications for 2 successive weeks in one or more local newspapers, one week in the Edinburgh Gazette, a national newspaper, the Lloyd's List and an appropriate fishing trade journal.

6.5 Assignation

6.5.1 Assignation of s.36 consent

A developer who has received a s.36 consent from the Scottish Ministers is not permitted to assign, or transfer, the consent to another person without the prior written authorisation of the Scottish Ministers. The Scottish Ministers may authorise the assignation of the consent (with or without conditions) or refuse assignation as they may, in their own discretion, see fit.

The assignation process undertaken by the Scottish Ministers is to safeguard the obligations of the consent if transferred to another company.

Information required

If a developer wishes to assign their consent to another company, there is certain information that the Scottish Ministers require. To assess the suitability for transfer of assignation of consent, the developer must provide to MS-LOT the following information -

Existing Company (Assignor)

Name:
Address (Registered Office):
Company Registration No:
Appointed Contact:

New Company (Assignee)

Name:
Address (Registered Office):
Company Registration No:
Appointed Contact:

Community Benefits

Is there an agreed community benefits package already in place?

Is the new assignee committed to honouring the community benefits package?

Determination

If the Scottish Ministers approve the assignation, it usually must take place within 4 weeks from the date of the approval letter, and it will be intimated by the Assignee sending the Scottish Ministers a certified copy of the assignation.

The Assignee is required to comply with all the conditions set out in the s.36 consent and the Assignee is not permitted to further assign the consent without further prior written authorisation of the Scottish Ministers.

6.5.2 Transfer of a Marine Licence

If a developer wishes to transfer a marine licence to another company, MS-LOT are required to vary the licence.

Section 30 (8) of the Marine (Scotland) Act applies and the developer must make a variation application to the Scottish Ministers. Please see section 6.3 above.

6.6 Discharging Consent and Licence Conditions

6.6.1 Overview of condition discharge requirements

Conditions will be used by Ministers in line with the 6 criteria set out in section 5.1 above. Conditions attached to offshore renewable energy consents or licenses will be used for the efficient operation of the development control process and will likely cover topics such as environmental monitoring, design of the project, construction methodology, and environmental management, or any other aspect of development control and mitigation.

Conditions can be applicable prior to and during construction, as well as through operation or decommissioning. Applicants should ensure that all project managers (and, if necessary, relevant subcontractors) are fully aware of all conditions and understand the need for compliance. MS-LOT will provide clarification of any conditions if they are not clear. Some conditions may be required to be discharged prior to the commencement of works. Others may include timing constraints on all or some of the works, so an early and concentrated assessment of consent conditions should be provided for in the schedule for the works.

6.6.2 Multi-stage Consents

Both the Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 contain provisions for multi-stage consents. A multi-stage consent process arises where a consent procedure comprises more than one stage. The first stage involves a principal decision; this is followed by one or more other stages involving an implementing decision(s) within the parameters set by the principal decision. While the effects which a project may have on the environment should be identified and assessed at the time of the procedure relating to the principal decision if those effects are not identified or identifiable at the time of the principle decision, assessment must be undertaken at the subsequent stage.

The definition in the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 is as follows: "application for multi-stage consent means an application for approval, consent or agreement required by a condition included in an Electricity Act consent where (in terms of the condition) that approval, consent or agreement must be obtained from the Scottish Ministers before all or part of the development permitted by the Electricity Act consent may be begun". The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 have a similar definition.

Consents and licences, if granted, by the Scottish Ministers for offshore renewable projects are likely to have several conditions attached requiring approvals which fall under this definition, for example the approval of a construction method statement, piling strategy, cable laying plan etc.

When submitting a plan or programme requested by a consent condition for consideration by the Scottish Ministers the developer must also include within that plan or programme information to satisfy the Scottish Ministers that no significant effects have been identified in addition to those already assessed in the EIA Report.

In doing so, the developer must account for current (meaning at the time of the multi-stage application) knowledge and methods of assessment which address the likely significant effects of the activities on the environment to enable the Scottish Ministers to reach a reasoned conclusion which is up to date. Scottish Ministers will issue decision notices for all multi-stage consent applications.

If, during the consideration of information provided in support of an application for multi-stage consent, the Scottish Ministers consider that the activities may have significant environmental effects which have not previously been identified in the EIA Report (perhaps due to revised construction methods or updated survey information), then information on such effects and their impacts will be required. This information must be dealt with as additional information under the EIA Regulations, and appropriate procedures for consultation, public participation, public notice and decision notice of additional information will apply.

When considering applications for multi-stage consents, Scottish Ministers may be required to validate the AA which was completed in relation to the principal decision to determine whether the conclusions of that AA are still valid.

The multi-stage consent process is currently being reviewed and this chapter of the guidance will be updated as and when this process is complete.

6.6.3 Post-Consent Monitoring

Post-consent monitoring requirements are incorporated into licence conditions in order to:

• Validate, or reduce uncertainty in, predictions of environmental impacts recorded in supporting EIA and HRA Assessments;
• Provide evidence on the effectiveness of mitigation measures to inform future decisions through adaptive management processes;
• Allow identification of any unforeseen impacts;
• Ensure that appropriate and effective monitoring of the impacts of the development is undertaken.

6.6.4 Regional Advisory Groups

Consent and licence conditions can require companies to participate in a Regional Advisory Group ("RAG") established by the Scottish Ministers for the purpose of advising on post-consent research, monitoring and mitigation programmes for, but not limited to, ornithology, diadromous fish, marine mammals and commercial fish.

Each Regional Advisory Group will have a particular focus on the monitoring activities for all developments in that region. Under the consent/licence conditions, each project will have to

• submit an Environmental Management Plan ("EMP") and Project Environmental Monitoring Programme ("PEMP") to Scottish Ministers for approval;
• provide information on monitoring and mitigation programmes for the project;
• where appropriate, feed into strategic research ideas and projects e.g. SpORRAn.

6.6.5 Commercial Fisheries Working Group

Consent and licence conditions can also require developers to participate in a Commercial Fisheries Working Group, or any successor group formed to facilitate commercial fisheries dialogue, to define and finalise a Commercial Fisheries Mitigation Strategy. The developer must produce and implement a mitigation strategy for each commercial fishery that can prove to the Scottish Ministers that they will be adversely affected by the Development.

In the first instance good practice in fisheries liaison and the application of mitigation measures should aim to minimise the levels of fisheries disruption or displacement, there may exist residual impacts upon fishing activities. Although in the UK there exists no legal basis for financial compensation associated with the loss of access to fishing grounds, disruption or displacement of fishing activities resulting from offshore renewable energy installations (OREIs) is recognised by both industries as a potential area of concern and one which may require discussion and an agreed resolution between the interested parties. FLOWW Best Practice Guidance for Offshore Renewables Developments: Recommendations for Fisheries Disruption Settlements and Community Funds provides guidance in this respect.

6.7 Enforcement

Under the Marine and Coastal Access Act 2009 and the Marine (Scotland) Act 2010, there are provisions for the Scottish Ministers to serve notice on those suspected of failure to comply with a condition in a marine licence, giving a reasonable period within which compliance must take place. On conviction of the offence of failing to comply with a condition in a marine licence, a fine of up to £50,000 may be imposed on summary conviction, while on indictment a fine and/or a sentence of up to 2 years imprisonment may be imposed.

There are no such provisions in the Electricity Act 1989, and therefore no intermediate procedures. Enforcement is by criminal proceedings by way of summary prosecution. It is however open to the Scottish Ministers to write to the consent holder pointing out the alleged contravention of condition, seeking a full response and requiring future compliance.