National Marine Plan Review 2018: three-year report

Implementation Of The Plan

For the Plan and its policies to be effective, implementation by the relevant public regulatory and decision-making authorities is essential. Understanding whether the Plan is being implemented, and what barriers exist, is therefore an important step to understanding effectiveness of the Plan. Information on whether use of the Plan is being monitored is also helpful as it can identify whether there is evidence to explore.

Following adoption of the Plan in 2015, all relevant public authorities in Scotland and across the UK were notified of the statutory obligation to take decisions in accordance with, or with regard to, marine plans. This was followed up in the review process whereby marine interests and relevant public authorities, Local Authorities with a coastline and Marine Scotland were invited to provide information on how the Plan was used, what barriers there are to implementation and whether implementation was monitored.

Responses suggest there is little direct monitoring being undertaken, although it should be noted that there is no statutory obligation to do so. Information provided indicates that the application of policies is sometimes audited within existing processes such as case handling documents. In such cases, extraction of information can be resource intensive.

Therefore, while some information is available, it is not easily accessible and has not been accessed for this review.

A number of examples were provided by public authorities to illustrate there have been changes to internal procedures to facilitate implementation. MS LOT, for example has introduced internal audit and recording procedures while the Scottish Environment Protection Agency ( SEPA) has changed internal and external advice to reflect Plan requirements. MS LOT has amended application forms to ask for information on how the proposed activity or proposal demonstrates alignment with the Plan.

The policies and objectives referred to in this report should be read in conjunction with Scotland’s National Marine Plan http://www.gov.scot/Topics/marine/seamanagement/national and A summary of Objectives and Policies http://www.gov.scot/Publications/2015/04/2989.

Marine Scotland Licensing Operations Team – Implementation of the Plan

As a key regulator in the Scottish marine environment, MS LOT plays a significant role in ensuring that the policies of the Plan are reflected in authorisation decisions which affect the marine environment, namely the consideration and determination of marine licences and consents on behalf of Scottish Ministers. The document entitled National Marine Plan

• Monitoring and Reporting http://www.gov.scot/Topics/marine/seamanagement/national/monitor sets out how consideration of MS LOT’s implementation of the Plan can contribute to the Plan’sreview.

MS LOT incorporated the policies set out in the Plan into licence determination and consent recommendation procedures following its adoption. Policy use is reported in case handling documents, the analysis of which provides information on the policies most frequently used. This has been supplemented with contextual information on the use of some policies by MS LOT through its engagement with the review process.

Licences issued by MS LOT

Since adoption of the Plan in March 2015 until the end of 2017 MS LOT issued 1,428 marine licences (including 277 variations) and 4 consents issued under Section 36 consents of the Electricity Act 1989.

Figure 2 illustrates the marine licences issued for a variety of activities of various scales, ranging from individual moorings through to large marine renewable energy arrays such as the Beatrice offshore wind farm in the Moray Firth.

Figure 2: Licences (By Type) Issued From Adoption Of The National Marine Plan (2015) Until The End Of 2017.

To enable a more detailed analysis of policy use the review has focused on the six month period between July 2016 and December 2016. In this time MS LOT issued 244 licences (including 15 variations). The number of licences issued by type is illustrated in Figure 3.

While all licences have a specified duration, some variations and new licences are sought by applicants to ensure continuity of business operations. This in part explains the large proportion of wellboat licences issued during the sample period.

Figure 3: Licences Issued During Sample Period July To December 2016

Policy use in licence determination

An overview of policies applied to licence considerations is illustrated in Figure 4. To some degree the policies used reflect activities for which licence applications have been made and which have been particularly relevant to those applications. The use of nearly all aquaculture and renewable policies reflects the large number of aquaculture licences issued, whereas the renewable policies highlighted were used across a smaller number of licences.

While all general policies are applicable to almost all applications, policies of particular relevance to certain applications are recorded and these are reflected in counts of policies used. The most commonly used policies are Aquaculture policy 12, General policies 1, 2, 3, 4, 7, 9 and 12, Recreational and Tourism 2 and Wild Fish 1 which have all been recorded more than 15 times during the sample period.

Figure 4: Policy Usage During Sample Period July To December 2016

Analysis of some of the policies applied in the sample period determined the following:

• Aquaculture policy 12 relates directly to wellboat discharges in that applications which “promote the use of sustainable biological controls… will be encouraged.” Use of this policy reflects MS LOT’s approach for alternative control methods to be considered in the determination process.
• Recreation and Tourism policy 2 advises on key factors that should be considered where a proposal may have an impact on recreation and tourism. Analysis indicates MS LOT has used this policy in relation to the potential impact on navigation by marine farms or other construction projects.
• Wild Fish policy 1 emphasises that MS LOT has consulted with relevant district Salmon Fishery Boards to determine whether proposals have negative effects on Salmon or other diadromous fish species.
• General Policies highlighted through the analysis suggest that some are specifically relevant to particular applications and have been considered either by the applicant or by MS LOT during its determination process. For example, General Policy 7 ensures that the visual impact of a project is taken into account and this has been used to help MS LOT identify whether it has been appropriately considered by the applicant. General Policy 4, which deals with co-existence, is identified as being useful by encouraging engagement between sectors where objections to an application were raised. Sea Fisheries policy 3 was also identified in the review process for the same reason, although it is not reflected in the sample period analysed.
• General Policy 9, which protects natural heritage is specifically mentioned in 88 of the 244 licences issued in the sample period. The reference to General Policy 9 reflects that statutory consultation with Scottish Natural Heritage ( SNH) is required for all applications and that it has been of particular relevance in relation to applications near a protected site.

In their response to the review MS LOT noted that some policies are more challenging to apply

• Sea Fisheries policy 3, which is used but not reflected in the sample period analysed, is useful in encouraging discussion and engagement. However, its location within the structure of the Plan means that it has potential to be overlooked by readers and users of the Plan.
• Transport policy 4 was highlighted as being difficult to apply as it may conflict with some of the HLMOs.

Overall, MS LOT indicated that it was able to implement the Plan, adapt procedures to take account of it and encourage applicants to demonstrate their own consideration of Plan policies. The Plan is considered most proportionate to large scale projects whereas applicants for small projects, such as an individual mooring, find it challenging to relate the Plan to the scale of their project. Forthcoming regional marine plans may help address this by providing a regional and local context.

Implementation and use by other statutory and non-statutory bodies

Information was gathered from planning ^[1] and licensing authorities, statutory advisors, regulators, other public authorities and a variety of marine stakeholders regarding how they use the Plan and what they consider barriers to effective implementation.

Public authorities stated they used the Plan and its policies in the discharge of their statutory functions. In addition to issuing licence and planning consents, local and strategic development planning, river basin management planning and provision of advice were all specifically mentioned. Other bodies and organisations identified a range of non-statutory uses. The following provides an overview of responses provided on how the Plan is used:

• as a reference point when responding as a consultee,
• as a basis of discussion with other bodies regarding sharing of infrastructure and ensuring marine and coastal access,
• to encourage pre-application processes,
• as the basis of advice on marine and coastal issues to other areas of an organisation,
• to encourage consideration of impacts of proposals on other marine users,
• to demonstrate service delivery is in line with policies of the Plan,
• to promote development of voluntary measures to help deliver Plan policy,
• to direct funding in support of Plan policy aims.

Of the Local Authorities which responded, those with experience of marine planning and those which have a particular maritime focus demonstrated more integrated use of the Plan within their own processes than those which do not. This is further demonstrated by the work of authorities such as Orkney Islands Council and Highland Council to develop the pilot Pentland Firth and Orkney Waters Marine Spatial Plan. This seeks to pilot the process of implementing National Marine Plan policy at a local level and has been adopted as non-statutory planning guidance which is a material consideration in relevant planning applications.

A number of the Planning Authorities which responded indicated that their local or strategic development plan policies complied with those of the Plan and therefore the Plan was implemented indirectly. While some authorities provided evidence of compatibility between Local Development Plan ( LDP) policies and Plan policies, others were less specific. In some cases it was difficult to determine if compliance was assumed because both marine and terrestrial planning frameworks have a shared goal of sustainability or because of any objective comparison of their own policies and those of the Plan had been undertaken.

There was a perception from respondents outwith Local Authorities that implementation of the Plan through inclusion in LDPs is not being undertaken consistently and therefore alignment of marine and terrestrial planning is not always achieved. The fact that some LDPs were published prior to the Plan and subject to a five year renewal process may in part explain why there is a lack of reference to the Plan in all relevant LDPs. As a statutory consultee, Marine Scotland engages in the LDP development processes and has returned comments to a number of Local Authorities to ensure that marine plans are recognised in LDPs which are being renewed.

The publication entitled Planning Circular 1/2015: the relationship between the statutory land use planning system and marine planning and licencing http://www.gov.scot/Publications/2015/06/5851 provides a brief outline of the legislative requirements for alignment between marine and terrestrial frameworks and opportunities where this could be achieved in practice. It sets out statutory responsibilities of both terrestrial and marine planning authorities to take account of respective relevant plans and this form the basis of future work to support Local Authorities in their implementation of the Plan.

Use of the Plan varies across other public authorities such as Marine Scotland, SNH, SEPA and Managers of Scottish Crown Estate Assets depending on their range of responsibilities and functions. In a number of review discussions it was deemed that the period from Plan adoption to review was not sufficiently long enough to allow for all areas of an organisation to adopt Plan policy into relevant strategies and processes.

Nevertheless the Plan is used for a wide range of purposes. It is used to align internal policy with that of Scottish Government and as the basis for some statutory advice and guidance. It also influences provision of funding in support of the Plan’s policy aims, to inform leasing rounds for renewable energy development and to assess applications for marine licences.

In summary, responses to the review process indicate that although there are some public authorities which are applying the Plan thoroughly to their decision making and service delivery, not all are doing so with the same consistency. However, it is also worth noting that the relatively small number of response returns, particularly from Local Authorities, makes the extent of this unclear and worthy of further consideration.

Barriers to implementation

Barriers to implementation were suggested by those who stated they implemented the Plan as well as those who stated they did not. Barriers largely fell into two categories: attributes of the Plan or the policies which are thought to be ineffective in influencing decisions and lack of awareness and resources.

To improve awareness of the Plan, consideration will be given as to how Marine Scotland can further support public authorities by raising awareness of the statutory nature of the Plan and highlighting its relevance to local circumstances. No opposition to marine planning or implementation of the Plan per se is apparent and therefore it is assumed that implementation can be increased by improving understanding of marine planning, the Plan and its statutory nature.

Issues raised as attributes which lead to ineffectiveness include the absence of guidance to accompany policies, perceived ambiguity around or indirect wording and conflict between policies. At the strategic level, the perceived conflict between policies relating to oil and gas in contrast to climate change policies was mentioned most often. It was also suggested that voluntary measures may not be sufficient, or regulatory mechanisms not available, to effectively implement some policies such as those in relation to aspects of tourism and recreation. Some of these examples are discussed further in the next section of this report.