Planning Scotland's Seas: Draft Planning Circular. Consultation Analysis Report

3 Draft Planning Circular

3.1 The first question in the consultation provided respondents with the opportunity to comment on whether or not the Draft Circular is helpful in outlining the relationship between territorial and marine planning. Specifically, Question 1 asked:

Q1. Is the Draft Circular on the relationship between the land use and marine planning systems helpful?

Overview of responses

3.2 Thirty-six of the 38 responses contained a direct answer to this question. There was widespread support for the Draft Circular in terms of its overall aims and purpose and the nature in which it was presented.

3.3 Thirty-three responses contained an affirmative response in the sense that they said 'yes' or commented that it was 'welcome' or 'helpful' and in some cases 'comprehensive'. Eighteen of these responses involved a qualified yes in the sense that the Draft Circular was welcomed and supported, or was seen as a 'good starting point', whilst some degree of amendment or clarification was required.

3.4 The remaining three consultation responses did not directly declare support or opposition to the question, but rather sought to outline suggested amendments or seek points of clarification. These are outlined in later sections.

General amendments to the Draft Circular

3.5 A significant proportion of responses drew attention to issues within specific sections and paragraphs of the Draft Circular. These are outlined later in this section. There were however, a large proportion of more general comments made where clarification was required or amendments suggested.

The need for a supporting schematic

3.6 Five responses to Question 1 commented on the need for a diagram or schematic to effectively map out the marine and land use planning frameworks with a public sector / regulatory body adding that it should be accompanied by an explanatory document. They suggested the document should demonstrate the relationship between land use planning and marine planning and licensing, in addition to clearly explaining the relationship between the legislation, policy ( i.e. the National Marine Plan) and other non-statutory guidance ( i.e. the Sectoral Marine Plans; the Marine Protected Areas and the Priority Marine Features).

3.7 The need for a diagram was highlighted by one local authority on the basis of the highly complex nature of any relationship between the two planning frameworks. It considered a diagram should set out marine and land use planning systems in parallel. This would show and provide links to the Joint Ministerial Marine Planning Statement, the UK Marine Policy Statement, National Marine Plan ( NMP) and Regional Marine Plans ( RMPs) on one side and Scottish Planning Policy ( SPP), National Planning Framework ( NPF), Strategic Development Plans ( SDPs), Local Development Plans ( LDPs) and Scottish Government on the other.

Roles and Responsibilities

3.8 Another local authority added a diagram would need to outline specific roles and responsibilities. An aquaculture organisation requested a description of the role of the Crown Estate, adding that it is important for the Circular to reinforce planning authorities should not seek to duplicate the powers of regulators.

3.9 Others stated that the Circular should outline the roles and responsibilities of the two planning frameworks, although this was more widely referred to in Question 2.

3.10 The need to outline specifics on roles and responsibilities was sometimes borne of anticipated conflict and / or confusion between planning authorities. A recreation / tourism organisation commented on the need to ensure each planning authority has a thorough understanding of key terminologies both from the marine and terrestrial planning environments.

Procedural Advice

3.11 Three respondents, two local authority / planning authorities and one 'other' stated the Circular should provide more information on policy areas and sectors in addition to procedural advice to make it more helpful.

3.12 Another organisation added that they were keen to see more information on procedures, specifically around multiple consents.

Other initial, general comments

3.13 A number of comments were received from a wide variety of respondent types. One of the main issues was about clarifying how specific plans, policies and documents relate to one another. An environment / conservation organisation commented that more guidance is required for marine and land use planners, adding that the links between the strategic policy and objectives of the NMP and the National Planning Framework ( NPF) / Scottish Planning Policy ( SPP) must be a fundamental element of the guidance to help ensure consistency across planning frameworks and consistency in decision making.

3.14 With regard to fish farms, a public sector body requested clarity on how the NMP under section 15 of the Marine (Scotland) Act will have primacy in decision making since they also fall under section 25 of the Town and Country Planning Acts. An aquaculture organisation added that they wished to see an explanation of why there is currently no provision for obtaining 'planning permission in principle' for fish or shellfish farms.

3.15 A charity organisation commented that the text of the Draft Circular should refer more specifically to NPF3 and the relationship between the NMP and NPF3.

3.16 One local authority added that, although useful generally, the Draft Circular ignores commercial fishing and oil and gas sectors; although oil and gas activities exist outside 12 nautical miles, it is an important sector economically and requires landfall for pipelines and servicing. With respect to commercial fishing, they suggested marine and coastal planning can help to provide a spatial management discipline for fisheries management.

3.17 A recreation / tourism organisation discouraged the use of the terms 'local', 'coastal' or any other terms which could be seen to narrow the scope of those that could be affected by various planning measures, stating that 'communities of interest' would be a preferential term.

3.18 One individual commented that alignment of timescales was particularly welcomed. A public sector / regulatory body commented that the Draft Circular properly summarises legislative requirements.

Comments relating to specific sections

3.19 A significant number of the comments received were targeted at specific sections of the Draft Circular. These are summarised below.

Marine Legislation

3.20 A public sector organisation requested greater clarity on licensing processes. Ifdetails cannot be provided at this stage, there should be a commitment to provide updated advice prior to the establishment of Marine Planning Partnerships.

Marine Planning

3.21 Two public sector bodies commented on the need to outline implementation in greater detail. For one, this was specified in the context of:

• How national and sectoral objectives will be interpreted;
• How regional marine plans will integrate policy objectives from the Draft NMP and relevant terrestrial plans and;
• How conflicts will be resolved (a strong theme in Question 2).

3.22 Within the context of marine planning generally, an environment / conservation organisation commented that that public bodies, when making decisions which are capable of affecting the UK marine area (other than enforcement or authorisation decisions), must have regard to the Marine Policy Statement and marine plans. Their suggested this clarification will be integral in addressing any uncertainty regarding the legal status of any marine plan and ensuring political support for marine spatial planning in Scotland.

Marine Policy Statement

3.23 A local authority wished to see clarification on paragraph 12 as to whether the 'Statement' refers to the Marine (Scotland) Act 2010, as referred in paragraph 10, or the Marine Policy Statement as referred to in paragraph 11.

3.24 A public sector body felt that as paragraph 13 was helpful in setting out the status of the NMP, it should have 'status' in the title. Another commented that they feel this section implies that the NMP is of greater importance and will take precedence over the terrestrial plan and enforcement action. As a result, the Draft Circular should contain an upfront statement defining the extent of both planning frameworks.

3.25 A local authority added that paragraph 13, while reflecting section 15 of the Marine (Scotland) Act 2010, creates potential challenges for the determination of some planning applications where an onshore planning application affects, or might affect, the marine area. They felt that in such circumstances, decisions should be taken in accordance with both the Strategic Development Plans ( SDPs) and Local Development Plans ( LDPs) in addition to the NMP and Regional Marine Plan ( RMP) as directed.

3.26 An environment / conservation organisation liked the clarity of paragraph 14.

Marine Plans

3.27 Only one comment was received (from an energy organisation) with respect to marine plans as outlined in paragraphs 15 - 17 of the Draft Circular. It proposed five year reviews differ from those of the England marine plans, which vary from 3 - 6 years. They felt that consistency across the border would be advisable.

The Scottish National Marine Plan

3.28 A local authority argued that the National Planning Framework also has to be taken into account in this section, particularly where it may affect intertidal zones.

Scottish Marine Regions

3.29 With respect to Scottish Marine Regions ( SMRs), one response (from a public sector organisation) stipulated that they would seek to have finalised boundaries produced before the final Circular is published.

3.30 A number of responses stated an expectation that Regional Marine Plans would fully align with the NMP to ensure consistency in approach within SMRs.

3.31 Whilst one public sector organisation particularly welcomed this section of the Draft Circular, a local authority stipulated that there is a need to specify which powers are to be devolved - whether this is just the power to prepare the Regional Marine Plan or whether it includes consenting powers. In addition, it was questioned how democratic a Marine Planning Partnership would be, given the vested interests that may well sit within the partnership. An energy organisation expressed concern at the approach to SMRs on the basis that it may result in inconsistent approaches between SMRs and potentially make development more complicated and time consuming. This organisation requested more information on who will sit on MPPs.

3.32 A local authority sought further clarification from the Circular on Scottish Government's intentions for RMPs and the timescales for implementation.

3.33 There was a call for the Circular to reflect the Marine (Scotland) Act's provision for local authorities to be delegated certain functions of regional marine planning.

3.34 A local authority and local coastal partnership commented that there may be different ways in which regional plans could be prepared within the framework set by Ministers and which conform with legislation reflecting local expertise and experience. An example of the composition of a Board of Regional Marine Planning Authority was offered. They argued that joint preparation of surveys and analysis of the opportunities to be expressed and approved in land use and regional marine plans could result in effective understanding if published as shared guidance. The establishment of regional partnerships was seen as important in encouraging one to learn from another.

3.35 The Pentland Firth and Orkney Waters Pilot Regional Marine Plan was mentioned by one respondent as an example of good practice on which to base the final information contained in the Circular.

3.36 A public Sector / regulatory body stated that there was a need to ensure SMRs are consistent with the River Basin Management Plan process.

Liaison between terrestrial and marine planning authorities

3.37 Two local authorities commented on paragraph 30, stating that guidance on integration between the marine and land use planning frameworks is currently sparse other than emphasising that both statutory plans need to take account of and complement each other. There was a perceived need to expand this section.

Consistency between policies and proposals in marine and terrestrial plans

3.38 A significant number of respondents highlighted the use of the term 'common sense judgements', stating it was and too subjective / non-specific and should be replaced.. Some expressed the view that its use would risk causing conflict at times of disagreement.

Integrated Coastal Zone Management ( ICZM)

3.39 Two respondents commented on a need to provide more detailed ICZM which they felt was not discussed. It was felt there is little guidance on processes that will be put in place for the resolution of dispute. Further, they felt that the principles of ICZM could be used to a much wider effect in the integration of marine and terrestrial planning than those currently stated in the Draft Circular.

3.40 A local authority argued that the need for specialised coastal zone planning and management is underplayed in the Draft Circular.

Marine Licensing

3.41 Two respondents, an energy organisation and public sector / regulatory body, commented on the usefulness of the Marine Licensing section specifically. The energy organisation highlighted their support for paragraphs 46 and 50 related to the Environment Impact Assessment ( EIA) activity.

3.42 One local authority commented on paragraph 49 which highlights the overlap in consenting regimes in the inter-tidal area. They felt this potentially points to a requirement for EIA processes (screening, scoping and Environmental Report) to be duplicated, creating additional work for developers and stated that a more streamlined approach would be preferable.

Renewable Energy

3.43 A public sector / regulatory body commented on the helpfulness of this section specifically, whilst a local authority added that it is vital that the onshore elements of the proposal are given appropriate consideration and weight in the decision making process.

3.44 An energy organisation commented on paragraph 52 related to the infrastructure for marine developments, suggesting that there should be an inclusion of interconnectors and converter stations.

3.45 Thinking specifically about paragraph 54 which stipulates that developers may still choose to make a separate planning application for the onshore component, two responses questioned why a developer would do this. One of these respondents, a local authority, also wished to see clarity on future processes of determining onshore components of offshore energy proposals. An energy organisation affirmed a single licensing approach as suggested in paragraphs 54 and 55, but stressed that there are circumstances where this approach could prove detrimental to development. They felt that this would suggest the need for a co-ordinated approach where licences are interlinked across the lifetime of any given project.

3.46 In response to paragraph 57, a fisheries organisation warned that the interface between marine and land use planning will produce complex issues. They stated the example of when permission or consent is sought for the same project but where parts of it are intended for the marine environment and parts of it for the terrestrial environment.

Ports and harbours

3.47 One comment was received from an industry / transport organisation who stated that integration of terrestrial planning is fundamental to port efficiency and success and higher awareness of transport activity is welcomed.

Coastal defences

3.48 An energy organisation requested clarity from the Circular on paragraph 64 which relates to flood protection schemes. There was a perceived need to outline how the schemes would relate to coastal erosion protection.

Aquaculture

3.49 Aquaculture issues were highlighted in detail, particularly from two local authorities and two aquaculture organisations. One of the latter felt it is important to define and outline the uniqueness of aquaculture to a greater degree than is in the Draft Circular. Clarity on whether the Scottish Government intends to shift responsibility for aquaculture development from land use to marine planning should also be provided. One of the local authorities argued that with respect to paragraphs 70-77, terrestrial planning should influence the regional marine plans in this regard and not the other way round as stated.

3.50 In relation to paragraph 70, another aquaculture organisation stated that the reference to 'non statutory spatial frameworks' should be removed and it should be made clear that Ministers expect planning authorities to prepare spatial guidance for aquaculture under their jurisdiction. One of the local authorities felt that in paragraph 76, 'fish farming framework' would more appropriately be presented as 'Supplementary Guidance'.

3.51 Another local authority felt that the information in paragraph 77 could be disputed. They felt that the Draft Circular suggests that in time regional plans and any supplementary plans or guidance associated with them should become the principal spatial form of reference for decisions about the location of new aquaculture development. However the local authority argues that there are good reasons why marine aquaculture now falls within the scope of the Town and Country Planning system and that a move away from local authority planning control would be a backwards step. For them, as long as aquaculture development interest remains focussed on locations close to the coast, the terrestrial development plan and its supplementary coastal planning guidance should have at least equal weight to marine region plans which is perceived to be coarser-grained and more absorbed with issues further offshore.

Conservation

3.52 Three comments were received in relation to conservation - one from a fisheries organisation and two from a local authority. The fisheries organisation felt that the definition of marine conservation zones appearing in paragraph 82 should be removed and inserted into paragraph 81, but expanded to make reference to the OSPAR Ecologically Coherent Network.

3.53 The local authority sought clarification in this section on two issues. In paragraph 80, they wished to know in what circumstances SNH and Scottish Ministers would give this advice and guidance. With respect to paragraph 83, two questions were asked:

• Will the demonstration and research Marine Protected Areas to be identified be time limited?
• Can they be de-designated at the end of the demonstration / research period?