Planning Circular: The relationship between the statutory land use planning system and marine planning and licensing

Marine licensing

40. Marine Scotland-Licensing Operations Team (MS-LOT) administers the licensing function under Part IV of the Marine (Scotland) Act 2010 (the Act) from 0-12 nautical miles and under Part IV of The Marine and Coastal Access Act 2009 from 12-200 nautical miles. The Acts largely replace Part 2 of the Food and Environment Protection Act 1985 ( FEPA) and Part 2 of the Coast Protection Act 1949 (CPA) and have a landward limit of Mean High Water Spring (MHWS) level.

41. Together, the provisions of the Acts and executive devolution of some reserved functions mean that Marine Scotland is the appropriate authority for licensing most 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.

42. The Acts define a number of licensable marine activities, including -

• depositing any substance or object within the Scottish marine area, either in the sea or on or under the seabed, from a vehicle, vessel, aircraft or marine structure (applies to any sea if vessel loaded in Scottish marine area).
• constructing, altering or improving any works within the Scottish marine area either in or over the sea, or on or under the seabed.
• using a vehicle, vessel, aircraft, marine structure or floating container to remove any substance or object from the seabed within the Scottish marine area (including dredging).

43. Under separate legislation, licences and consents are required for marine based electricity generating stations of capacity greater than 1 MW, for activities affecting 'protected species' and for many oil and gas related activities between 0 and 12 nm.

44. 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 exempt from marine licensing as it has its own regime.

45. While aquaculture developments are exempt from most of the marine licensing regime, a licence is required in relation to navigational aspects, and finfish developments also require one in relation to discharges from wellboats.

46. Some 'licensable marine activities' are regulated activities that form part of a plan or project that may require Environmental Impact Assessment under the Marine Works ( EIA) Regulations 2007 (as amended) and/or the Electricity Works ( EIA) (Scotland) Regulations 2000 (as amended). Marine Scotland expects significant and very early pre-application consultation with applicants and cross cutting discussions with any other regulatory or appropriate authority engaged in the EIA process, such as a relevant local authority, to streamline the EIA process. EIA can be a lengthy process, for example, ornithological (for offshore wind farms) or cetacean (for offshore wind farms, wave and tidal projects) reports may require at least two years' worth of data and so early dialogue is of paramount importance.

47. Before they determine a licence application, Scottish Ministers usually publish notice that they have received it and must consult certain statutory consultees, to include marine planning partnerships when they are formed. Terrestrial planning authorities are not statutory consultees, but will be consulted on a case by case basis by MS-LOT where it considers this is warranted. Within the inshore region (out to 12nm) pre-application consultation will be required for some categories of application (which are to be prescribed by subordinate legislation). Scottish Ministers may also hold an inquiry into a licence application before determining it. In deciding whether to issue a licence, Ministers will consider the environment, human health, legitimate uses of the sea and any other matters they consider relevant.

48. Applicants who are dissatisfied with the Scottish Ministers' decision on a licence application may appeal to a Sheriff. Carrying out a licensable activity without a licence is an offence. Ministers have the power to vary, revoke or suspend a licence, and to take enforcement action. Marine Scotland maintains a public register of marine licensing information.

49. Since marine licensing covers the marine area up to mean high water spring and terrestrial planning control extends down to mean low water spring, there is an overlap of consenting regimes in the inter-tidal zone. This means that for some activities there may be a need for both a marine licence and planning permission, and a works licence in Shetland and in certain parts of Orkney.

50. Where both a licence and planning permission are required, it will be important to establish - through early pre-application engagement - which of the competent authorities, if any, will require an environmental assessment (including any EIA or Habitats Regulations Appraisal where appropriate). Early and effective engagement with all the relevant consenting authorities and Consultation Bodies will be particularly important in such cases. This will provide the opportunity to discuss which environmental assessment obligations may apply; the applicant's proposed consenting strategy; and the scope for co-ordinating the different consenting processes and their environmental assessment obligations. In this way, all parties can seek to minimise duplication whilst ensuring the requirements of the individual environmental assessment regimes (including EIA and HRA) are met in full.