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Publication - Consultation analysis

Pilot Pentland Firth and Orkney Waters Marine Spatial Plan. Consultation Analysis and Modifications Report.

Published
21 March 2016
Topic
Marine and fisheries
ISBN
9781786520685

The Pentland Firth and Orkney Waters Marine Spatial Plan is a pilot process undertaken by a working group consisting of Marine Scotland, Orkney Islands Council and Highland Council in advance of statutory regional marine planning. This report presents an

View supporting documents Supporting documents

5. Section 2: How to Use the Plan

5.1 Summary of responses received

Stakeholder Count
Commercial 3
Fisheries and aquaculture 2
Individual 1
Non-governmental organisation 2
Public sector 7
Recreation 1
TOTAL 16

5.2 Main themes

5.2.1 One of the key themes in responses to the question requesting comments on Section 2 was a request for more clarity regarding the status of the Plan and concerns that, as currently drafted, the text was unclear and appeared contradictory.

5.2.2 Two respondents sent in similar responses that stated some of the text in relation to fish farming/aquaculture were incorrect. Both provided detail regarding how the text could be clarified and corrected. They noted the importance of a clear definition of fish farming and aquaculture and that this should be consistent throughout the document.

5.2.3 There were several comments provided on 'zoning' of areas with most respondents acknowledging that a strict zoning approach was not likely to be useful but suggesting other ways in which this could be carried out. This included identifying 'restricted areas' 'preferred areas' or presumption for or against certain activities as a means of steering activities to the areas of least constraint. One respondent noted the need for clarification on how policy will relate to developments depending on whether they are inside or outside the Sectoral Plan Option Areas. This respondent also noted that although their opinion was that Plan Option area OWN1 is not likely to be suitable for development there were other locations within the PFOW that could be suitable for development and they raised concerns this would be in contravention of the Plan policy. A recreation stakeholder welcomed the approach of supporting co-existence and compatibility between users rather than zoning activities and felt early consultation could allow many activities to co-exist.

5.2.4 Two respondents (individual and fisheries) both raised concerns with how aquaculture planning is carried out in Orkney. One expressed the opinion that current guidance appears to be ignored and that consultation with regard to sailing interests only appears to take place after planning permission has been given. The other respondent expressed the opinion that the consenting of aquaculture has been poorly discharged by Orkney Islands Council and that no appeals are available to objectors.

5.2.5 Two correspondents made suggestions regarding how this section could be streamlined and made more concise.

Table 5.1 Section 2 How to use the Plan - Table of suggested modifications

No. Suggested modification Action taken Reason
35 Paragraphs 33 - 37 appear to be somewhat at odds with each other. At paragraph 33 it states that the MSP aims to guide regulators, developers, etc when making decisions that have potential to affect the coastal and marine environments. However the following paragraph (34) states the MSP will be a material consideration in licensing/s36 determinations by MS-LOT. As any finalised PFOW MSP will not have any statutory basis under the Marine (Scotland) Act 2010, it is not clear how it can be a material consideration in marine licensing applications (which fall to determination under the 2010 Act) or s36 applications (which fall to determination under the 1989 Electricity Act or joint consideration under s35(1) of the 2010 Marine Act).
There is perhaps a need to clarify paragraphs 33 - 37 to highlight that any finalised MSP can only be used to guide developers, regulators, etc. but that, in this regard, its use is to be greatly encouraged as a precursor to statutory Regional Marine Plans.		 Paragraph 33-37 (now 34-38) will be updated to reflect the approved status of the Plan following consideration of the Final Plan by the appropriate Council committees and Scottish Ministers. The Plan will, subject to approval by Scottish Ministers, be one of a number of material considerations in the determination of Marine Licence and section 36 applications and will therefore help guide decision making. A material consideration is not the same as making decisions in accordance with a statutory plan. The Final Plan will be updated appropriately once it has been considered by the Council committees and the Minister.
36 Paragraph 75: Delete 'for proceeding' from end of penultimate sentence. Paragraph 75 (now 76): The phase 'for proceeding' has been deleted. To improve the clarity of the text.
37 Paragraph 39 indicates that each policy has equal weight. Further guidance should be given in order to prevent delays to decision making should policies be in conflict with each other for a specific application e.g. if some policies strongly support it, but others do not. None. A balanced approach to decision making will be taken on a case by case basis. In principle the policies in the Plan are afforded equal weight in decision making, though, where there is a statutory requirement, ( e.g. for protected sites) these requirements will have to be satisfied whilst balancing this decision with other policy considerations.
38 Paragraph 43 states that data layers used in the plan will not be updated. Decision makes should use the most up to date information available in the consenting process. The RYA dataset is currently undergoing a significant update, and we would expect the most accurate data to be used. It would be useful if this section could indicate what should be done where more recent data is available, where policies link to out of date information. PARAGRAPH 42 (now 43): The word 'the' deleted from before the word 'each' in the first sentence.
PARAGRAPH 43 (now 44): Paragraph text replaced with 'Data layers contained within the Plan area can be found in the 'North Coast and Orkney' section of the data layers control under 'Regions'. The data contained within the Pentland Firth and Orkney Waters Marine Spatial Plan folder are archived copies of the maps included in the Plan. As such these data will not be updated and represent the use of the Plan area at the time of publishing the Plan. Further supporting spatial information is located within this folder and the separate 'Orkney' and 'North Coast' folders which will be updated as new data are identified or produced. For more information on how to use National Marine Plan interactive please use the in-system help menu'.		 To correct a typographical error.

To provide greater clarity regarding the use of spatial data.
39 The licensing and consents section (p.21) is useful. However it could be misleading as it contains a mixture of consents and assessments ( e.g. EIA, HRA), and does not contain all the possible consents or assessments that might be required for a development, particularly on the coast. Consideration should be given to whether this section is removed or significantly revised. None. Paragraph 45 states that the list of licences and consents is not exhaustive. Assessments including Habitats Regulations Appraisal and Environmental Impact Assessment have been discussed in this section of the Plan in relation to licensing and consenting requirements.
40 We agree that identifying areas for the exclusive use of one kind of development/activity is not always a realistic prospect in the short term and may not be desirable in the long term. However, 'zoning' may also include 'softer' spatial approaches. Consequently, as the evidence base improves, future plans may find that identifying 'restricted areas' , 'preferred areas' (or presumption for or against certain activities)may be a more effective means of steering activities to the right places than simply identifying constraints. Indeed the SEA of the plan (Annex C) suggests that such an approach may have more positive environmental effects than the proposed approach.
It would be helpful therefore if an explanation of 'zoning' could be provided and that the text could be amended to make it clearer that other spatial-planning 'tools' weren't being ruled out. We therefore suggest the following alternative for the third/forth line of paragraph 38: "exclusive-use zoning of activities ( i.e. identifying areas for the sole use of one type of development/activity) is not a realistic prospect in the short term" and that the following sentence is added to the end of this paragraph 38. "Future marine plans may consider identifying areas for preferential use by specific sectors, as suggested by the National Marine Plan"		 PARAGRAPH 38 (now 39): Text in first sentence amended to 'zoning areas for exclusive use ( i.e. identifying areas for the sole use of one type of development/activity) is not a realistic prospect in the short term'.
PARAGRAPH 38 (now 39): The following sentence has been added to the end of paragraph 38 (now 39), 'Future marine plans may consider identifying areas for preferential use by specific sectors, as suggested by the National Marine Plan'.
Alternative approach to spatial planning considered in the Lessons Learned report.		 To clarify the spatial approach to the pilot Plan and suggest a potential spatial approach for future regional marine plans.
41 Para. 46-79: It is very useful to have an explanation of all the regulations and licences/consents that apply to activities and development in the Scottish marine environment in one place, though it may be more appropriately placed in Section 3. However, in order to ensure that future RMPs can be as concise as possible, it might be better (and more efficient) if one piece of guidance could be produced to cover Scotland, (perhaps as an addendum to the NMP) so that there was no need for this information to be reproduced (with the risk of mistakes and inconsistencies) in every RMP. In addition, it would be easier to revise one document if there were changes in regulations, rather than a number of RMPs suddenly being out of date. No modification to the Plan.
Lessons Learned report should consider recommending that one piece of national guidance be produced outline the relevant authorisation and enforcement mechanisms associated with marine planning in Scotland.		 It is considered appropriate that Section 2 How to Use the Plan contains a brief outline of the key licensing, consenting and associated assessment processes as these mechanisms are an essential implementation methods for the Plan objectives and policies.
42 Para. 47 - The final sentence is incorrect. Only fish farming in the marine area is regulated, under the Town and Country Planning (Scotland) Acts, by local planning authorities, and only out to 3 Nm (See Circular 1/2007 Planning Controls for Marine Fish Farming Annexe B Para. 6). PARAGRAPH 47: Reference to 'aquaculture' changed to fish farming. To align with Planning Acts.
43 The phrase "which is determined by local planning authorities" is not entirely correct given that, under the T&CP(S) Acts, Scottish Ministers have a key role both in the development planning system (local development plans) and in development management (planning applications and appeals). Furthermore it is Scottish Ministers who issue Orders and Regulations implementing the provisions of the Acts. PARAGRAPH 47: Replaced text 'and aquaculture development which is determined by local planning authorities' with 'and fish farm development which requires planning permission from local planning authorities'. For accuracy.
44 Para. 51. - The first sentence is incorrect and poorly written PARAGRAPH 51: First sentence replaced with 'For fish farming development planning permission from local planning authorities is required (see paragraphs 64-66)'. For accuracy.
45 Para. 63 - The term 'aquaculture' is used here where the term 'fish farming' would be more appropriate (see comments above). PARAGRAPH 63: Reference to 'aquaculture' changed to 'fish farming'. For accuracy.
46 Para. 64 - If, in using the term 'aquaculture', what is meant is 'fish farming' then why not be specific and say 'fish farming' (see comments above). The final sentence repeats what is said earlier in the paragraph and is therefore unnecessary. PARAGRAPH 64: Reference to aquaculture in the title at paragraph 64 has been changed to 'fish farming'.
PARAGRAPH 65: New paragraph (now 66) inserted immediately after paragraph 65 - 'Planning control for marine fish farming extends from Mean High Water Springs to 12 nautical miles (the limit of territorial waters) as set out in Section 26(6) of the Town and Country Planning 1997 Act (as amended). Marine waters out to 3 nautical miles were divided into marine planning zones by the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 which also sets out which local authority is the planning authority for the purposes of marine fish farming within a zone. As the fish farming industry looks to develop beyond 3 nautical miles Scottish Ministers will consider the need to extend these marine planning zones further. As stated in the Circular 1/15: The Relationship Between the Statutory Land Use Planning System and Marine Planning and Licensing; In future, should fish farming extend beyond 12 nautical miles a Marine Licence from Marine Scotland would be required as the primary consent to develop'.		 For accuracy.
To clarify the extent of local planning control for marine fish farming.
47 Para. 66 - The use of the term 'aquaculture' appears inappropriate given that it is only fish farming that is covered by the T&CP(S) Acts. It might be helpful if the document described the licensing regime for seaweed cultivation and other types of aquaculture activities that are not covered by the T&CP(S) Acts. PARAGRAPH 66 (now 67): Changed reference to 'aquaculture' to 'fish farming' in first and second sentences. Changed first word in third sentence from 'aquaculture' to 'fish farming'. For accuracy.
48 The reference to "Aquaculture Supplementary Guidance" in the context of the OIC LDP is incorrect as there is none at present. " Sectoral Policy 2" relates solely to fish farming therefore should be renamed accordingly (see comments above). PARAGRAPH 66 (now 67): Changed reference to 'Aquaculture Supplementary Guidance' to 'Aquaculture Planning Policy Advice' in third sentence. To reflect the current status of this planning guidance.
49 Paras. 70 &71 - The description of the role of EIA, and the processes involved, could be improved. EIA is a process whereby the likely significant impacts of a development are identified and assessed. Primarily this is to assist developers in the mitigation of any negative impacts, but it is also designed to help decision makers consider fully the environmental effects of a development before they arrive at a decision. Para. 71 is inaccurate in its description of the need for screening for Sch. 2 developments and contains typing errors. PARAGRAPH 71 (now 72): Changed second sentence to ' EIA is mandatory for Schedule 1 projects and Schedule 2 developments have to undergo screening to determine whether an EIA is required.' To amend typographical error relating to Environmental Impact Assessment Schedules.
50 Paragraph 34 states that the PFOW MSP will be used as material consideration in Marine Licence and s36 decisions. Clarity would be useful as to how this sits with the current NMP and future RMPs in this regard and how this Plan constitutes a 'material consideration', where it has been referenced in paragraph 32 that the plan is non-statutory.
Paragraph 35 states that the Plan could be adopted as PPA, which goes beyond acting as guidance and/or being non-statutory in nature. Clarification should be given with regards this statement.		 None. The Plan will, subject to approval by Scottish Ministers, be one of a number of material considerations in the determination of Marine Licence and section 36 applications and will therefore help guide decision making. A material consideration is not the same as making decisions in accordance with a statutory plan. The Final Plan will be updated appropriately once it has been considered by the Council committees and the Minister.
Paragraphs 4, 32 (now 33), 34 (now 35), 35 (now 36), 36 (now 37) and 37 (now 38) provide information regarding the status of the pilot Plan and the relationship of the Plan to future regional marine plans.
51 Paragraph 35 states that the Plan could be adopted as PPA, which goes beyond acting as guidance and/or being non-statutory in nature. Clarification should be given with regards this statement. PARAGRAPH 35 (now 36): Amend sentence to 'Highland Council and Orkney Islands Council will be provided with the option to adopt the final pilot Marine Spatial Plan as non-statutory planning guidance acknowledging the status of the Plan as a material consideration in the determination of relevant planning applications. Orkney Islands Council will also be provided with the option to approve the Final Plan as a material consideration in the determination of works licence applications'. For greater clarity.
52 Paragraph 36 states that the status and use of the Plan rests with the Regulator; however, it is necessary to define the status of the Plan at the consultation stage. How the Plan should be treated is unclear at this moment; therefore, this may add to uncertainty amongst users of the PFOW area. None. Decisions regarding the status and use of this Marine Spatial Plan will rest with the relevant regulators.
53 It is unclear how the first sentence of Paragraph 37 aligns with Paragraphs 34-36 and the Plan's use as material consideration, as PPA and/or its use being open and up to the Regulator. It would be useful to remove any ambiguity. None. Paragraph 37 aims to make clear that the Plan itself does not provide decisions on proposed development and management.
54 For accuracy, we would suggest the heading above paragraph 78 refers to The Crown Estate Leases & Licences (this covers both coastal and seabed agreements). The term 'presumed to belong' is unclear and misleading. Suggest rewording this to ''approximately half of the foreshore and most of the seabed out to 12 nautical miles is managed by The Crown Estate. The Crown Estate is able to grant leases and licences over the foreshore and seabed it manages. It is therefore likely that a lease or licence from The Crown Estate will be required for most marine developments and it is advisable that prospective developers consult with The Crown Estate'. PARAGRAPH 78 (now 79): Changed title to 'The Crown Estate Leases and Licences'.
PARAGRAPH 78 (now 79): Change text to 'In Scotland approximately half of the foreshore and most of the seabed out to 12 nautical miles is managed by The Crown Estate. The Crown Estate is able to grant leases and licences over the foreshore and seabed it manages. It is therefore likely that a lease or licence from The Crown Estate will be required for most marine developments and it is advisable that prospective developers consult with The Crown Estate'.		 For accuracy.
55 58-60 these paragraphs deal with DECC whilst it is noted at 79 that the Smith commission agreement may see Crown estate assets transferred to Scottish Parliament. Clause 54 of the proposed legislation would also see some of the DECC responsibilities transferred. As this is still in draft maybe not appropriate to comment too much at this stage. None. Reform of the Crown Estate is an ongoing process and up-to-date information regarding this can be found on the Smith Commission website. This website is signposted at paragraph 79 (now 80).
56 Section 2: How to use the Plan needs to be streamlined. For example, all background information on the Plan's development is not required to be in the Plan itself (include in a Lessons Learned document) and information on how to use the NMPi site is not necessary. None. The process of preparing the Plan is central to purpose of the MSP pilot and should therefore be set out in the Plan.
It is considered appropriate to assist plan users to access the relevant PFOW MSP information on NMPi.
57 In paragraph 39, the PFOW states that 'all policies in the plan are afforded equal weight in decision-making and should be read in conjunction with each other', which fails to acknowledge or emphasise the importance of environmental protection - a key component of the ecosystems approach. The protection, and where appropriate the improvement, of environmental health should be identified as the defining objective of the PFOW and this should be reflected in a weighted policy structure that favours the environment. This approach has been taken in the Shetland Islands Marine Spatial Plan ( SIMSP), where priority is awarded to 'Clean and Safe' and 'Healthy and Diverse' policies, before 'Productive' policies. We consider the adoption of a similar structure for the PFOW would have been more beneficial for the development of the North Coast and Orkney RMPs. None. The Plan seeks to take a balanced approach to Sustainable Development and gives significant weight to the health of the environment through a raft of ecosystems and natural heritage related policies. General Policy 1C highlights the importance of safeguarding marine ecosystems specifically.
58 We note that paragraph 38 makes clear that that the MSP is not seeking to zone specific areas for development. In general we support this approach, particularly for emerging technologies such as wave, tidal and floating wind, but seek clarity on how policy will relate to developments depending on whether they are inside or outside the Plan Option areas as presented in the RLG. Paragraph 395 of the MSP states that the plan option areas are those within which commercial scale development should be sited but further notes that developers can choose to locate outwith these. We perceive the potential for confusion regarding the relative approaches of the MSP and the Sectoral Plans to zoning of marine development. PARAGRAPH 38 (now 39): Last sentence deleted and replaced with 'This approach aims to identify potential sensitivities and constraints to support the identification of opportunities for future sustainable development and activities. The exception to this approach is the inclusion of the Plan Option areas identified for offshore wind, wave and tidal development. These have been identified in the Plan to be consistent with the National Marine Plan'. To provide clarity regarding the spatial approach to the Plan.
59 Paragraph 35 - 'There is potential for the final pilot Marine Spatial Plan to be adopted as planning policy advice or as supplementary guidance to the Orkney Local Development Plan and the Highland-wide Local Development Plan, as revised.' Note that the correct terminology is non-statutory planning guidance rather than planning policy advice. If adopted as SG it will be important to ensure that the MSP can be adapted to be specific to each respective planning authority area. In addition it is important to be aware that some of the content of the MSP considers policy areas beyond the remit of statutory terrestrial planning. EXECUTIVE SUMMARY and PARAGRAPH 35 (now 36): Text deleted 'or as supplementary guidance to the Orkney Local Development Plan and the Highland-wide Local Development Plan, as revised'.
PARAGRAPH 35 (now 36): Amended sentence to 'Highland Council and Orkney Islands Council will be provided with the option to adopt the final pilot Marine Spatial Plan as non-statutory planning guidance, acknowledging the status of the Plan as a material consideration in the determination of relevant planning applications. Orkney Islands Council will also be provided with the option to approve the Final Plan as a material consideration in the determination of works licence applications'.		 To state the preferred status of the Plan as non-statutory planning guidance as opposed to Supplementary Guidance.
60 Paragraph 41 - in relation to the definition of development it would be useful to note, perhaps by way of a footnote, that there is a statutory definition of development for land use planning purposes and which is relevant to the intertidal area. Please see Section 26 of the Town and Country Planning (Scotland) Act 1997 http://www.legislation.gov.uk/ukpga/1997/8/section/26 PARAGRAPH 64: Inserted footnote number with the following reference next to the first word 'development'.
http://www.legislation.gov.uk/ukpga/1997/8/section/26		 To provide clarity as to the definition of development provided within the Planning Acts.
61 The text 'Decisions must also accord with policies of the National Marine Plan and any subsequent statutory regional marine plans, unless relevant considerations indicate otherwise. Planning Circular 1/2015: The relationship between the statutory land use planning system and marine planning and licensing provides further information on the role of marine planning in aquaculture consenting' should be added to provide clarity on statutory requirements. Text added to PARAGRAPH 67 before last sentence. To provide clarity.

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