Pilot Pentland Firth and Orkney Waters Marine Spatial Plan. Lessons Learned.

Appendix 1: Governance paper

Note: This paper was written early in the process of developing the Plan and was updated as necessary throughout the process.

Pilot Pentland Firth and Orkney Waters Marine Spatial Plan

Governance Paper

Introduction

1. Ahead of future statutory regional marine spatial plans being developed around Scotland, Marine Scotland, Orkney Islands Council and Highland Council are developing a non-statutory marine spatial plan pilot in the Pentland Firth and Orkney Waters ‘strategic area’. The purpose of this governance paper is to identify legislative and policy requirements for developing the pilot, and suggest appropriate working arrangements in response to those requirements.

2. Effective governance can be defined, among other things, as decision-making mechanisms to provide participatory, transparent and accountable ways for public authorities or institutions to manage human activities, linked to specific outcomes.

Legislative requirements

Regional marine planning partnerships

3. The Marine (Scotland) Act makes provision for statutory regional marine plans to be developed, either by the Scottish Government or by regional marine planning partnerships. These partnerships must, so far reasonably practicable, include representatives from environmental, commercial, and recreational sectoral interests.

Working arrangements

Pilot working group

4. The non-statutory nature of this pilot means that its working arrangements do not necessarily have to mirror those set out in the legislation. As the pilot is designed to inform the roll out of regional planning there are advantages in not following the formal process and convening a regional marine planning partnership. A more informal approach will help the pilot to be developed quickly in response to current pressure for the proposed development of marine renewables, and other sectors, as well as inform the future roll-out of regional marine planning. Therefore, the pilot will be carried out by a small working group comprising officials from each of the relevant organisations; Marine Scotland ( MS), Orkney Islands Council ( OIC) and Highland Council ( HC).

5. This working group will make its own arrangements to meet regularly as required. It is expected that each of the host organisations/employers of the working group will pay any costs associated with these meetings.

Linkages with appropriate processes in ‘parent’ organisations

6. Marine Scotland will have overall responsibility for the pilot plan and the working group will aim to obtain consensus on issues whenever possible. However, where this cannot be achieved Marine Scotland will decide on what action the group should take. Each of the three organisations taking forward the plan will need to identify the most appropriate processes to ensure oversight (and where necessary sign-off) of the relevant outputs by their management structures. The local authorities will want to provide briefing notes and/or committee reports which will give councillors the opportunity to comment on the various stages of the pilot process, and where appropriate, to sign-off the work before it goes to consultation.

Oversight by an advisory group

7. In order to ensure effective links between the development of the pilot and other relevant policy development (e.g. on marine spatial planning) at national level the working group will be overseen by an advisory group comprising officials from Marine Scotland, OIC, HC and representatives with an interest in the protection and enhancement of the area and the commercial and recreational use of the area. Its remit will be to advise on the tasks required to take forward the pilot, as identified in the project plan, as well as advise on draft and emerging outputs. As work on the plan progresses, this group may need to consider the efficacy of this remit. It may also consider formalising its remit, for possible future consideration by regional marine planning partnerships when they develop their own remits.

Stakeholder engagement

8. One of the first tasks of the working group is to draft a ‘plan scheme’; a public document which explains how stakeholders and local communities will be involved and consulted. The document identifies the following methods of stakeholder engagement:

• formal periods with documents deposited for consultation;
• public consultation events at key stages;
• focussed discussion groups;
• one to one stakeholder meetings, and
• meetings/presentations with key stakeholders.

These methods mirror those used for the development of land-based plans and the pilot plan process may need to use all these methods or just some of them.

9. It is likely that the development of the pilot plan will require smaller sub-groups to be set up to deal with specific technical issues. The need for, and membership of, these groups will be developed and identified through the ongoing consultation process.

10. The Plan Scheme 2012 sets out the key stages in the plan making process. Stage 2 of the process consists of a set of studies designed to fill information gaps identified in stage 1. Key studies are ScotMap; the inshore fishing study (completed) and the commercial shipping and recreational boating study (completed). Both of these studies were overseen by steering groups which included key stakeholders.

Costs of the working group

11. Some of the tasks of the working group, such as consultation and communication with stakeholders and communities, will require funding. The working group will be required to estimate the likely future costs, and work with the advisory group to identify sources of funding. Marine Scotland will meet the core costs of communication and consultation. Marine Scotland have made a grant contribution towards the officer staff cost for OIC since 2012 and to HC since 2015.

Spatial extent of plan

12. The Act makes provision for the boundaries of future statutory regional marine plans to be defined in secondary legislation. The Scottish Marine Regions Order came into force in 2015. The Order has identified a Marine region for Orkney and a Marine region for the North Coast of mainland Scotland. The subsequent Regional Marine Plans will therefore be informed by the pilot plan. There will need to be an explanation of how the non-statutory pilot will progress/feed in to the statutory plans in this region provided within the plan.

13. However, the pilot will consist of a single plan for the whole of the PFOW region i.e. encompassing the Orkney and North Coast Scottish Marine Regions, because there is value in enabling the local authorities and Marine Scotland to work together to develop common aims and policies. More specifically, the trigger for the pilot is the ongoing commercial development of the marine renewable energy sector. There will be common issues, for example, the possible impact of marine renewables upon ferry routes across the Firth, requiring solutions to be agreed and applied across the whole region.

14. The statutory marine planning regime has a landward boundary at the Mean High Water Spring tide mark, overlapping with the land planning regime (which has a seaward boundary at the Mean Low Water Springs). This is intentional in the drafting of legislation to ensure consistency in treatment of issues in common with both marine and land planning, such as coastal infrastructure. There are advantages for the pilot to have the same landward boundary as the statutory regime, to ensure that processes for joining up with land planning are developed and can be applied to future regional plans.

15. There will also be a need to consider the local authorities approach to coastal areas in their planning guidance and policies, and ensure consistency between the pilot marine plan and those land planning documents in its approach for the areas of overlap. The working group will have to ensure that they work closely together and with land planning colleagues to provide consistent advice and information.

Policy requirements:

Sectoral wave and tidal energy plans

16. National sectoral wave and tidal plans have been developed by the marine renewables team in Marine Scotland; the purpose of these plans is to identify strategic areas (i.e. on larger scales than individual development areas) of resource for development of wave and tidal energy, along with any environmental and socio-economic constraints upon that development. As with the existing offshore wind plan, these plans should enable interested developers to identify sites that are most suitable for development with the fewest constraints.

17. These sectoral plans are material to the marine licensing process, and will inform the statutory national marine plan. In order to ensure a consistent approach the work on the non-statutory pilot plan will need to be closely linked with the development of the sectoral plans as both deal with aspects of wave and tidal energy developments.

18. There are seven areas proposed for wave and tidal energy development that are subject to the Crown Estate’s agreements for lease which give the relevant developers exclusive rights to a sea bed area for purposes including physically surveying the site, collecting resource and environmental data and preparing an application(s) for statutory consent(s). Agreements for lease generally do not allow permanent installations on the seabed. A lease (different from an agreement for lease), contingent on the developer obtaining all necessary statutory consent, allow the developer to construct and operate a project, including permanent installations. Given that developers have now started the legal process of gaining marine licences and converting the agreements for lease into full leases, these areas will be excluded from the sectoral wave and tidal plans.

19. The work on the pilot plan will be carried out in conjunction with the emerging sectoral wave and tidal plans and planning issues around the associated infrastructure required for renewables developments (such as cable routes, cables coming onshore, substations, and ports and harbours), will also be considered as part of this plan.

20. Care will therefore be required for communications relating to the public consultation on the pilot, sectoral wave and tidal plans and onshore planning issues. These will have to be carefully worded to explain exactly what is within the scope and what is not, and the relationship between the various plans.

21. Overall the process for developing the pilot plan will need to keep in step with the process for developing the sectoral wave and tidal plans, to ensure consistency. The best approach would be to take into account the existing regional locational guidance for the PFOW (which was published as part of the stage 1 document in March 2011) and the ongoing work on the national regional locational guidance for wave and tidal energy.

Use/applicability of the pilot plan

22. HC and OIC 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. OIC will also be provided with the option to approve the Final Plan as a material consideration in the determination of works licence applications.

23. Together with the sectoral renewables plans (which are also non-statutory), the Licensing and Operations Team in Marine Scotland can use the pilot plan (if approved by the Scottish Ministers) as a material consideration in the determination of marine licensing and section 6 applications.

Summary of the stages of approval and consultation of the PFOW pilot plan

Key Outputs 2012 - 2016	Delivered
Pentland Firth and Orkney Waters Stage 2 Research Studies	2012 - 2016
The Plan Scheme (including Participation Statements)	November 2012
SEA Scoping Report	March 2013
Planning Issues and Options Consultation Paper and draft Environmental Report	May 2013
Consultation Analysis on Planning Issues and Options Consultation Paper and draft Environmental Report	November 2013
Consultation Report on Planning Issues and Options Consultation Paper and draft Environmental Report	April 2014
Draft Pilot Pentland Firth and Orkney Waters Marine Spatial Plan	June 2015
Sustainability Appraisal incorporating a Strategic Environmental Assessment ( SEA) a Socio-Economic Assessment draft HRA Record.	June 2015
Consultation Analysis and Modifications Report on Draft Pilot Pentland Firth and Orkney Waters Marine Spatial Plan	March 2016
Final Pilot Pentland Firth and Orkney Waters Marine Spatial Plan including SEA Post Adoption Statement and HRA Record	Spring 2016
Pilot Pentland Firth and Orkney Waters Marine Spatial Plan Lessons Learned Report	March 2016

Marine Scotland

January 2016