Pilot Pentland Firth and Orkney Waters Marine Spatial Plan

Section 2: How to use the Plan

Introduction

34 The pilot PFOW Marine Spatial Plan aims to guide regulators, developers, planners and marine users when making decisions that affect the coastal and marine environment and the diverse activities that take place within the Plan area. This section provides guidance on how the Plan can be used in decision-making by public authorities. Further guidance is provided to support government agencies when providing advice on licensing and consenting related matters, e.g. marine licensing advice, scoping opinions for environmental impact assessments. Guidance is also provided to support the use of the Plan by wider stakeholders including developers, local communities and non-governmental organisations.

Status of the Plan

35 The Plan will be used by the Marine Scotland Licensing Operations Team ( MS- LOT) as a material consideration in the determination of marine licensing and section 36 consent applications within the Pentland Firth and Orkney Waters area.

36 The Highland Council and Orkney Islands Council have adopted the pilot 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 has also adopted the Plan as a material consideration in the determination of works licence applications in the Orkney Harbour Area.

37 It is anticipated that other regulators will pay due regard to the final pilot Marine Spatial Plan when making authorisation and enforcement decisions relating to marine and coastal management, development and activities within the Plan area. As this is a non-statutory pilot Marine Spatial Plan, decisions regarding the status and use of this Marine Spatial Plan will rest with the relevant regulators.

The limitations of the Plan

38 The pilot Plan will not provide decisions on proposed development and management. The Plan sets out the strategic vision, objectives, policies and relevant data to guide the relevant consenting bodies when making decisions on individual development proposals. It is intended that the pilot Plan will become one of a number of material considerations in the determination of consent applications. As the pilot Plan is non-statutory, marine planning decisions will not have to be made in accordance with the pilot Marine Spatial Plan as prescribed in the Marine (Scotland) Act 2010; rather it would be a key guidance document. As this pilot Plan is being developed during a period of evolving national policy and guidance, with new evidence becoming available continually, it should be viewed as part of an ongoing marine planning process.

The spatial approach to the Plan

39 The general consensus expressed by stakeholders during the Planning Issues and Options consultation was that given the current state of knowledge of environmental impacts, technology development and marine activities/use, zoning areas for exclusive use activities (i.e. identifying areas for the sole use of one type of development/activity) is not a realistic prospect in the short term. The principle of supporting co-existence and compatibility between marine users was considered the preferred approach. For this reason, this Marine Spatial Plan does not identify areas for exclusive use for specific developments and/or activities. The Plan spatially identifies where existing activities are taking place and the location of natural, historic, economic and community resources. Future marine plans may consider identifying areas for preferential use by specific sectors, as suggested by the National Marine Plan. 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.

Use of the policy framework and definition of policy terms

40 To implement the Plan's overall vision, aims and objectives, the Plan's policy framework consists of a suite of General Policies and Sectoral Polices. The General Policies are, in principle, applicable to all development and activities. The relevance of the General Policies to any given development and/or activity will vary depending on the particular circumstances including type, scale, location and any potential impacts. The Sectoral Policies are designed to support the sustainable development and management of specific sectors. It should be noted that all the policies in the Plan are afforded equal weight in decision-making and should be read in conjunction with each other. Furthermore, the Sectoral and General Policies should be considered alongside the relevant legislation, policies and plans set out in Section 3 and Annex 2.

41 The General and Sectoral Policies were identified through a process of stakeholder engagement undertaken as part of the Planning Issues and Options consultation stage.

42 To provide clarity and consistency on the terminology used within the General and Sectoral Policies the following definitions are provided:

• Development(s) are defined as construction that requires a specific form of statutory consent from a competent authority to utilise a defined area. This can include new developments or alterations, extensions or changes in material use to existing developments that require a statutory consent. The definition of development for purposes of this Plan includes but is not limited to the definition provided under the Town and Country Planning (Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006.
• Activities include current or future use that is covered by a public right of use (e.g. navigation, rights of access) or use that requires a specific statutory consent from a competent authority (e.g. dredging). The term activities also includes any other legitimate use that is not specifically addressed by a public right, e.g. recreational activities such as surfing, open water swimming etc.
• Marine users refers to the broad range of legitimate users of the marine environment for purposes such as, but not limited to, recreation, fishing, shipping, passenger transport and other economic activities.

How to use the Plan's Spatial Information and National Marine Plan Interactive

43 The Marine Spatial Plan policies are supported by relevant spatial information presented in associated maps within each of the policy sections. Further to this, the Plan's spatial information can be accessed on National Marine Plan interactive (NMPi) ^[26] allowing users to overlay data to build up a more sophisticated picture of marine development, infrastructure, activities and resources.

44 Data layers within the Plan area can be found in the 'North Coast and Orkney' section of the NMPi 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.

Implementing the Plan

45 One of the key mechanisms for delivering the vision, objectives and policies of this Plan will be the decisions made by a range of public authorities relating to the management and development in the PFOW marine area. The Plan aims to promote consistent decision-making via the implementation of the General and Sectoral Policies to achieve sustainable development and management. The following text sets out a summary of the main licensing and consenting requirements that developers need to consider. This is not intended to be an exhaustive list of the licensing and consenting requirements for all developments and activities.

Licensing and consents

Marine Licence

46 The Marine (Scotland) Act 2010 and the UK Marine and Coastal Access Act 2009 ^[27] provides the statutory framework for marine management. The Marine (Scotland) Act 2010 legislates for marine planning and licensing and conservation activities in Scottish territorial waters (0-12 nautical miles). The UK Act provides executive devolution to Scottish Ministers for marine planning, licensing and conservation powers in the offshore region (12-200 nautical miles).

47 The provisions of the Acts and executive devolution of some reserved functions mean that Marine Scotland is the appropriate authority for licensing most developments and activities in Scotland's marine environment. Exceptions include most activities relating to oil and gas, defence and shipping, which remain reserved by the UK Government and fish farming development which requires planning permission from local planning authorities.

48 The Acts introduced a streamlined marine licensing system with accompanying enforcement powers. The marine licence supersedes the former Food and Environmental Protection Act 1985 ^[28] ( FEPA) licence and Coast Protection Act 1949 ^[29] ( CPA) consents and makes Scottish Ministers responsible for issuing new marine licences in Scottish inshore and offshore waters.

49 A marine licence from Scottish Ministers is required if any person intends to do any of the following from a vehicle, vessel and other structure in Scottish Waters (from mean high water springs out to 12 nautical miles under the Marine (Scotland) Act 2010 and 12-200 nautical miles through devolved powers from the Marine and Coastal Access Act 2009):

• deposit any substance or object in the sea or on or under the seabed
• construct, alter or improve works on or over the sea or on or under the seabed
• remove substances or objects from the seabed
• dredging (including plough, agitation, side-casting and water injection dredging)

50 Certain activities are specifically exempted from licensing by Order, for example maintenance of ports and harbours (if carried out for, or on behalf of, a Harbour Authority within the area of the existing works) and coastal defences (for, or on behalf of, a local authority), as are certain activities required for safety and in emergency situations. Fishing is also exempt from marine licensing as it has its own regime.

51 For fish farming development planning permission from local planning authorities is required (see paragraphs 66-68). Marine farms for fish and shellfish require a marine licence for navigational purposes if they involve the creation, alteration or maintenance of artificial reefs or, if their installation causes, or is likely to cause, obstruction or danger to navigation. Marine Scotland considers that all fish and shellfish farms have the potential to cause navigational obstruction and so all fish and shellfish farms should be covered by a valid marine licence. Discharge of chemotherapeutant from wellboats also requires a marine licence.

Marine Licence - Public Pre-Application Consultation ( PAC)

52 The Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013 ^[30] came into force on 6 April 2014. The Regulations require applicants for certain activities in the Scottish Inshore Region to carry out a public pre-application consultation. Applications affected will include those activities covered by the Marine (Scotland) Act 2010 with the potential to have significant impacts upon the environment, local communities and other legitimate uses of the sea. The purpose of these new requirements is to allow local communities, environmental groups and other interested parties to comment upon proposed marine developments at an early stage, before an application is submitted to MS- LOT.

53 The prescribed classes of activities affected are:

• submarine cables over 1853 metres (approx. 1 nautical mile) in length and where the intertidal boundary is crossed
• reclaiming land, where the area exceeds 10,000 square metres
• any bridge, causeway or walkway, including pontoons, over 50 metres in length
• construction works or alterations, other than for a renewable energy structure exceeding 1,000 square metres
• renewable energy structure, or alteration or improvement, where the total area in which the structure is to be located exceeds 10,000 square metres

54 On the submission of suitable supporting evidence, a prospective applicant for a marine licence may request a 'pre-application consultation statement' from MS- LOT, confirming whether the marine licensable activity in question is subject to the public pre-application consultation procedure. MS- LOT will provide a pre-application statement within three weeks of receiving the required information. Further information is provided in the Marine Scotland Guidance on Marine Licensable Activities subject to Pre-Application Consultation ^[31] .

Section 36 Consent (s36)

55 Section 36 consent under the Electricity Act 1989 ^[32] is administered by MS- LOT on behalf of Scottish Ministers. Section 36 consent is required to construct, extend or operate generating stations above 1MW capacity inshore (from 0-12 nautical miles) and above 50MW offshore (12-200 nautical miles). Applicants are required to obtain the consent of Scottish Ministers which, as with marine licences, can be granted with conditions to ensure full compliance with all relevant legislation. Section 35 of the Marine (Scotland) Act 2010 allows for section 36 electricity consents and marine licences to be considered together. Marine developments with a capacity of 1MW or less do not require section 36 consent, in these cases, a marine licence is required from MS- LOT.

56 Planning permission will, in most cases, be required for certain onshore development associated with marine electricity generation (e.g. substations, control buildings, compounds), which are above mean low water springs. A statutory provision in the Growth and Infrastructure Act 2013 ^[33] , amending section 57 of the Town and Country Planning (Scotland) Act 1997 ^[34] , allows Scottish Ministers to direct that planning permission is deemed to be granted for the ancillary onshore components and related onshore infrastructure for a marine based electricity generating station consented under section 36. This allows for a single application process consented by Marine Scotland. Developers can still choose whether to make a separate planning application for onshore components of a development and should seek early pre-application consultation with MS- LOT and the planning authority to consider the appropriate consenting process.

57 Reserved matters such as defence and oil and gas exploration are licensed by the Department of Energy and Climate Change ( DECC) on behalf of the Secretary of State and DECC should be consulted when requiring a marine licence for any of these reserved activities.

Department of Energy and Climate Change ( DECC) - Decommissioning

58 Sections 105 to 114 of the Energy Act 2004 ^[35] introduced a statutory decommissioning scheme for offshore renewable energy installations in English, Welsh and Scottish territorial waters and in the Renewable Energy Zone. Under the statutory scheme, the Secretary of State for Energy and Climate Change may require those persons with an interest in such installations to produce a fully-costed decommissioning programme. This should detail how they intend to remove the installation when it comes to the end of its useful life and how the costs of doing so will be funded.

59 Responsibility for decommissioning remains with the UK Government and is administered by the Department of Energy and Climate Change ( DECC) and must be agreed by the Secretary of State. Liaison with DECC should be via MS- LOT in the first instance. Applicants should bear in mind that all information presented in the Decommissioning Programme will be made publicly available. If applicants feel that the financial section of the programme is likely to be of high commercial sensitivity, they should discuss this issue directly with DECC.

60 DECC is keen to assist developers and offer feedback on proposed decommissioning programmes. Developers should ensure that they have fully read and followed the DECC Guidelines ^[36] for decommissioning before approaching them to discuss their proposals in greater detail.

European Protected Species Licence ( EPS)

61 European Protected Species Licences are issued by MS- LOT. Scottish Natural Heritage ( SNH) are the licensing authority for marine activities with a research or education purpose and are the licensing authority for otters in all circumstances. The Conservation (Natural Habitats, &c.) Regulations 1994 ^[37] (as amended by The Nature Conservation (Scotland) Act 2004 ^[38] ) implement the species protection requirements of the EU Habitats Directive ^[39] on land and inshore waters to 12 nautical miles. Certain species are listed in Annex IV of the Habitats Directive as species of European interest and in need of strict protection. The protective measures required are outlined in Articles 12 to 16 of the Directive and are transposed into Scottish law through the following:

• Regulation 39 (1) and (2) and 43 of the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended): (Scottish inshore waters within 12 nautical miles)
• Regulation 39 (1) and 43 of the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 applies (Offshore Marine Regulations)
• The Wildlife and Natural Environment (Scotland) Act 2011 ( WANE)

62 Applicants are required to satisfy European Protected Species licensing tests, for further information refer to the Scottish Natural Heritage guidance ^[40] . Licences are usually granted subject to conditions and licence holders are responsible for ensuring compliance with conditions. Failure to comply with conditions is an offence.

Works Licence

63 The Orkney County Council Act 1974, as amended, provides powers to Orkney Islands Council to issue licences for works within the Orkney Harbour Area. A works licence is required to construct, place, maintain, alter, renew or extend any works on, under or over tidal waters or tidal lands below mean high water springs. A licence is also required under the Act to dredge any part of the Harbour Area. Fish farming developments do not require a works licence. It is recommended that any developers considering undertaking works in the Orkney Harbour Area should consult the Orkney Islands Council Development Management team at an early stage in the development process. The Harbour Area is presented in Map 21.

Planning permission (The coastal zone and fish farming)

64Development ^[41] that is located landward from mean low water springs may require planning permission under the Town and Country Planning (Scotland) Act 1997, as amended by the Planning etc. (Scotland) Act 2006. Orkney Islands Council and Highland Council are the planning authorities for the coastal areas within the area of this Marine Spatial Plan. Developers should consult the local planning authority to determine whether planning consent is required for any element of a planned development ^[42] . Orkney Islands Council is the planning authority for Orkney and Highland Council are the planning authority for Caithness and Sutherland.

65 Planning applications will be determined in accordance with the relevant adopted local development plan, including any adopted supplementary guidance. It is therefore recommended that developers, and other relevant stakeholders, should consider the appropriate local development plan to inform project development and the preparation of any planning applications.

66 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 Planning Circular 1/2015: 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.

67 Planning permission is required for fish farming developments including alterations to existing sites (excluding seaweed cultivation at the time of writing). It should also be noted that fish farming developments are afforded certain Permitted Development rights under the Town and Country Planning (General Permitted Development) (Fish Farming) (Scotland) Amendment Order 2012. Aquaculture planning applications in Orkney will be considered in accordance with the Orkney Local Development Plan Policy SD8 and the Aquaculture Planning Policy Advice. In Caithness and Sutherland applications will be considered in accordance with Policy 50 of the Highland-wide Local Development Plan, which is currently under review, along with Supplementary Guidance for aquaculture that is presently being developed. 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. Sectoral Policy 2: Aquaculture in this Plan provides non-statutory guidance relating to aquaculture development and signposts to the relevant policies within the respective local development plans.

68 Development classed as 'national' under the National Planning Framework or 'major' under the Town and Country Planning (Hierarchy of Development) (Scotland) Regulations 2009 will require formal pre-application consultation. The Scottish Government Circular ^[43] 5/2009 Hierarchy of Developments provides useful guidance regarding the requirements of the regulations.

Water Environment (Controlled Activities) (Scotland) Regulations ( CAR)

69 Within the marine environment, the CAR authorisation is primarily concerned with controlling the discharge of pollutants, including from finfish aquaculture developments and water abstraction. Detailed guidance on the level of authorisation required for an activity, which is dependent on the risk to the environment, is available in the CAR Practical Guide ^[44] on the Scottish Environment Protection Agency's ( SEPA) website. Developers are advised to consult with SEPA (the licensing authority) to identify if a CAR licence is necessary, and to determine the extent of the information required by SEPA to fully assess any licence application.

Department of Energy and Climate Change Oil and Gas Consents

70 Within the Plan area (out to 12 nautical miles) DECC is responsible for environmental impact assessment and habitat and species issues in relation to the Petroleum Act functions. However, DECC's environmental regulations relating to emissions and discharges do not apply in internal or controlled (0-3 nautical miles) waters and competence in relation to pollution matters in these areas rests with the Scottish Government.

Environmental Impact Assessment

71 Environmental Impact Assessment ( EIA) is a process that aims to protect the environment by ensuring that the appropriate consenting authority has full knowledge of the environmental effects of a proposed development. It takes these into account in the decision-making process. The appropriate consenting authorities for all marine developments from mean high water springs to 12 nautical miles are likely to be the local planning authority, MS- LOT on behalf of Scottish Ministers, or DECC on behalf of the Secretary of State for reserved matters.

72 European Directive (2011/92/ EU which codified version 85/337/ EEC as amended by 97/11/ EC, 2003/35/ EC and 2009/31/ EC) ^[45] requires an EIA to be completed in support of an application for development of certain types of project, as listed in Schedules 1 and 2 of the Directive. EIA is mandatory for Schedule 1 projects and Schedule 2 developments have to undergo screening to determine whether an EIA is required. Screening for an EIA refers to the process by which a specific project or development is reviewed to determine if a statutory EIA is required.

73 The European EIA Directive has been transposed into various regulations relating to development type and location. These include:

• The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2000 (as amended) which apply to applications made under Section 36 and 37 of the Electricity Act ^[46]
• The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 which apply to terrestrial developments that require planning permission ^[47]
• The Marine Works (Environmental Impact Assessment) 2007 (as amended) which apply to marine licensing ^[48]

74 If an EIA is required, a scoping exercise should be undertaken to determine the issues and impacts to be assessed, the data required, the assessment methodologies to be applied and how this information should be documented in the Environmental Statement. A Scoping Report should be submitted to the appropriate consenting authority by the applicant and the authority will respond by producing a formal Scoping Opinion following consultation with statutory consultees.

75 EIAs are required to assess cumulative effects as well as any direct and indirect effects resulting from a proposed development or activity. The assessment of cumulative effects should consider any existing and proposed project in the public domain which may interact to result in cumulative impacts and those environmental receptors that may be impacted by cumulative effects. The European Commission ( EC) has produced guidance on how cumulative impacts can be assessed ^[49] . For further guidance relating to EIA requirements for developments that have marine and terrestrial components refer to General Policy 7A: Integrating coastal and marine development and the supporting text to this policy.

Habitats Regulations Appraisal

76 The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) require competent authorities to assess certain plans or projects which may affect Natura sites (Special Areas of Conservation and Special Protection Areas). Any development proposal, which requires planning permission or other consent, is considered a 'project' requiring consideration under the Habitats Regulations via a Habitats Regulations Appraisal ( HRA). Where there is potential for significant effect on the qualifying interests (species and/or habitats) of a Natura site alone or in-combination, irrespective of distance of the proposal from that site, the development proposals must be subject to an Appropriate Assessment under the provisions of the Habitats Regulations. Permission for the proposal can only be granted by the relevant planning or licensing authority where it can be shown, beyond reasonable scientific doubt, that the proposal will not adversely affect the integrity of the site. Where a proposal does not satisfy this test, it can only proceed if there are no alternative solutions and imperative reasons of over-riding public interest. Compensatory measures must also be put in place by Scottish Ministers to secure the continued coherence of the Natura network.

77 The assessment of effects on integrity is made against the conservation objectives for the European sites, which are available on SNH ^[50] and Joint Nature Conservation Committee ( JNCC) ^[51] websites. The onus is on demonstrating the absence of such effect so the question which an Appropriate Assessment must satisfy is 'can it be ascertained that the proposal will not adversely affect the integrity of the site?'.

78 Developers will undertake and fully document the HRA process and produce an 'Information for Appropriate Assessment' report for the competent authorities. The competent authorities will review the supplied documentation in consultation with SNH and JNCC and make the necessary judgement.

Crown Estate Leases and Licences

79 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.

80 As part of the Smith Commission Agreement, responsibility for the management of the Crown Estate's economic assets in Scotland, and the revenue generated from these assets will be transferred to the Scottish Parliament. This is an ongoing process and up-to-date information regarding this can be found on the Smith Commission ^[52] website.

Monitoring and review process

81 Monitoring the effectiveness of any plan is an essential part of the planning process. In the case of this pilot Marine Spatial Plan, the pilot process will be reviewed to identify lessons learned that can inform the process of future statutory regional marine planning. It is not intended that a detailed monitoring programme will be put in place for this pilot Plan as it is likely that the regional marine planning process will commence immediately following the pilot.

82 At this point in time, there is an inherent degree of uncertainty surrounding the potential impacts of the Plan policies, particularly as many are likely to be influenced by a range of site and project specific factors. In addition, with the limited availability of baseline data and absence of specific measurable targets there are many challenges that need to be addressed. The review of the pilot planning process will aim to highlight these challenges and present key principles for how monitoring and review can be carried out in the future.