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

4 Integration Between the Two Regimes

4.1 The integration of marine and land use planning frameworks was an issue highlighted by a small number of respondents at Question 1. The second question in the consultation offered respondents the opportunity to comment on how effectively the Draft NMP sets out the requirement for integration of the two systems. Question 2 asked:

Q2. Does the Draft National Marine Plan appropriately set out the requirement for integration between marine planning and land use planning systems?

4.2 Of the 38 total respondents, thirty-three directly answered Question 2. There were 13 positive responses, albeit three were a qualified yes. Six respondents said 'no' to the question. The remaining 14 responses provided a wide range of additional comments relating to possible amendments or points of clarification whilst offering no explicit support for or rejection of the question. The main issues arising from the responses were related to:

• The need for clearer and stronger references in the Draft NMP to the Draft Circular;
• The need for greater detail on method of integration between the two regimes;
• The need to outline roles and responsibilities of each regime;
• Concerns over potential conflict.

4.3 In addition to the main issues above, other individual comments were also made. Many detailed issues highlighted specific sections of the Draft Circular.

The need for clearer references to the Draft Circular in the Draft NMP

4.4 Nine separate responses made reference to the fact that the Draft NMP provides less detail on the integration of marine and terrestrial planning frameworks than does the Draft Circular. Five of the nine responses were from local authorities / planning authorities, two from industry / transport organisations, one from a public sector / regulatory body and one from another organisation.

4.5 Some felt that there was a need for the NMP to include clearer and stronger references to the Circular in terms of information on integration whilst others commented on the need for better consistency between the two. The Draft Circular was generally agreed to contain more information on the issue. As one local authority / planning authority commented:

"The Draft Planning Circular 'The relationship between the statutory land use planning system and marine planning and licensing' provides more detailed guidance on how integration between terrestrial and marine plans can be achieved. This guidance should be clearly cross referenced in the NMP to ensure a consistent approach."

4.6 An industry / transport organisation suggested that there should be a much stronger relationship between the Circular and the Draft NMP. The organisation continued to comment that key elements of the National Planning Framework, where they have a bearing on the marine environment should also be referenced in the NMP and in future, each should accord broadly with each other.

Details on integration and roles and responsibilities

4.7 Seven responses commented at Question 2 that there was insufficient information at present on the specifics of integration. In general, respondents agreed with the rationale behind integration, but there was a concern that the information was currently too sparse to see how it would work in practice.

4.8 One of the main concerns with the lack of specificity was the perceived potential for conflict. Some respondents questioned how decision makers could feasibly determine which plan's policies should be given priority for individual developments.

4.9 Aligned with this issue, a number of respondents were concerned about potential conflicts for which greater guidance would be required. Two public sector / regulatory bodies commented on the need to provide more guidance generally on resolving conflicts, whilst a Local Coastal Partnership stated that the Scottish Government simply needs to accept that expensive legal resolutions are inevitable, particularly in the early stages. They continued to draw attention to the fact that there are currently no formal regulations to guide the process of preparing marine plans in contrast to the territorial system.

4.10 The need to provide greater information on the specifics of integration was highlighted by respondents' expectations of conflict between various planning authorities. For some, a mitigating measure for this issue would be a clear delineation of roles and responsibilities. Two local authorities and a public sector / regulatory body suggested that the provision of information and or exemplar case studies, would provide sufficient guidance to minimise this potential conflict.

4.11 Another local authority commented that the NMP should set out specific protocols to direct interactions between marine and terrestrial planners in terms of day-to-day processes for working between the relevant authorities. They suggested that such protocols should cover both the pre-application consultation / advice stage and the consenting process for submitted applications. They also felt that protocols for the engagement between marine and terrestrial planning authorities in respect of plan-making could be established, indicating how such engagement would work and at what stages during the plan preparation process it should occur. They argued that these protocols should be included within the final version of the Circular. They concluded by saying that experienced coastal planners on the Royal Town Planning Institute's Marine Spatial Planning Task Group have long argued that a simple two-way split for planning purposes is undesirable.

4.12 Two local authorities / planning authorities added that the link between the two regimes is not limited to physical or structural connections and therefore recommended a fully integrated community, service and development planning system supported by the Scottish Government.

4.13 A recreation / tourism organisation argued that integration is very important from a tourism perspective due to its value. They stated that the NMP needs to be consistent with the National Tourism Development Plan.

Additional general comments

4.14 Two responses - both from environment / conservation organisations - commented on the lack of steer on the government's priorities in the Draft NMP, arguing that regional marine planners need an overarching policy framework with which to draw reference. A public sector / regulatory body registered their support for the approach taken in England, suggesting a similar coastal concordant to that initiated by the Management Marine Organisation.

4.15 An industry / transport organisation and a recreation / tourism organisation commented on their objection to the use of the term 'terrestrial' in the Draft NMP and Draft Circular. The latter of these suggested use of the term "land use planning" on the grounds that the term "terrestrial' might be used to differentiate from marine matters in a purely generic sense stating that the Draft Circular demands reference to the customary terminology of the actual statutory systems involved.

Comments relating to specific sections

4.16 A significant number of comments received at Question 2 addressed specific sections of the Draft Circular. These are summarised below.

Marine Legislation

4.17 Two responses, from environment / conservation organisations commented that at paragraphs six and seven which refer to the duty under Section 4 of the Marine Act, there is a failure to reference the duty to further the achievement of sustainable development and argued that this duty must be included in the final Circular .

4.18 A public sector / regulatory body added that at paragraph seven they would like to see more information on general duties under Section 3 of the Marine (Scotland) Act.

Marine Planning

4.19 An industry / transport organisation felt that with respect to the guidelines at paragraphs 9 - 22 inclusive, there was considerable scope for overlap and duplication between the three tiers of marine plans that are being introduced, thus reinforcing the need for clearer guidance on roles and responsibilities. They also felt that a timeframe for review of the Joint Ministerial Statement Marine planning Statement would be valued.

Marine Policy Statement

4.20 The same organisation added in relation to the Marine Policy Statement that at paragraph 13 it would be advised to replace the term 'relevant' with 'material' as this is so closely aligned with section 25 of the Town and Country Planning (Scotland) Act, 1997.

4.21 With respect to paragraph 14, a public sector / regulatory body stated that it is important to explain here that land use development plans and other land use planning functions, which do not involve the enforcement or authorisation decisions within the marine environment, should as a result of the Act, have regard to the Marine Policy Statement and the NMP. They argue that this is an important statement in the context of what the Draft Circular is seeking to achieve and that an example, setting out the relationship between the NMP in its adopted form and a land use planning application, for example, could be included either at this point in the document or elsewhere to allow understanding of roles.

4.22 Another public sector / regulatory body felt that paragraph 14 could contain more clarity on how this may affect the activities and operations of a regulatory public body and a non-regulatory public body, such as Scottish Water.

Marine Plans

4.23 With respect to marine plans, two comments were received in relation to paragraph 17 specifically. The first, from a public sector / regulatory body sought clarification on whether the review refers to both the Draft NMP and Regional Marine Plans. The second issue highlighted was that the water quality and standards investment cycle can take up to ten years and this may put it out of sync with the suggested review period outlined in the Draft NMP.

The Scottish National Marine Plan

4.24 An issue highlighted in this section of the Draft Circular was the need for specific documents and plans to relate to one another. At paragraph 19 of the Draft Circular, one local authority felt there was a need to mention that the NMP should be consistent with the National Planning Framework.

Scottish Marine Regions

4.25 A number of issues were highlighted at Question 2 in relation to the section on Scottish Marine Regions, with some similar themes emerging to those highlighted in Question 1. Three responses, all from local authorities commented on the need to consider that the arrangements for the delivery of regional marine planning should be determined at the local level, including, whether the planning authority or a Marine Planning Partnership ( MPP) should take responsibility for regional marine planning functions. Indeed one response commented on the fact that the local authority itself should be the MPP rather than just represented in it. They argued that the justification for this is affirmed through sections 12 and 51 of the Marine (Scotland) Act.

4.26 A local coastal partnership and a public sector / regulatory body felt that this section of the Draft Circular could be more specific on roles and responsibilities as outlined earlier in the chapter. They wished to have more clarity on what issues would remain reserved and which would be fully devolved down to regional marine planning level.

4.27 There was a suggestion that before the final adoption of the NMP and Planning Circular, SMR boundaries should be finalised.

Liaison between terrestrial and marine planning authorities

4.28 Further to the issues relating to roles and responsibilities and regional marine planning, an industry / transport organisation felt that the liaison between land use and marine planning authorities section needs to consider the diversity of MPPs. They argued that they will be made up of disparate interests and therefore there is a need to consider how these interests will collectively reach a position with regard to a Development Plan.

Timing of plans

4.29 Three responses - from a local coastal partnership, local authority and industry / transport organisation - commented on the difficulty in alignment of timings. This was based on the fact that each planning authority is likely to work to its own timescale. The local coastal partnership commented that "the linking of terrestrial and marine planning timetables is ambitious. There will be enough guidance from national plans and flexibility both at the regional level and within the planning cycle to allow for a common approach to emerge even if plans are not synchronised temporally."

Consistency between policies and proposals in marine and terrestrial plans

4.30 The issue in paragraph 4.29 regarding timings was expanded on by some in the next section where there was a perceived need to provide clarity on the specific timeframe of the various marine plans and their review periods. One local authority felt that the wording at paragraph 34 could be 'watered down' slightly in light of the potential difficulties to say that this should be done 'where possible or appropriate'. Another respondent stated the need for a clear and transparent process for all planning, whether terrestrial or marine.

4.31 As at Question 1, there were two responses which highlight the need to disambiguate the term 'common sense judgements'.

Integrated Coastal Zone Management

4.32 A local authority commented that near shore coastal zones often require consideration in a different way from more distant offshore waters due to the intensity of interactions between land and sea interests and the area where a range of interests are most likely to compete for space. As a result, they felt there was a need for bespoke coastal plans at a local level in this context.

4.33 An environment / conservation organisation and public sector / regulatory body noted that the use of ICZM could be used to address complex or competing interests but this should not be assumed for all areas. Other supporting mechanisms may need to be developed.

Marine Licensing

4.34 With respect to marine licensing, for some there was a desire to see a disambiguation of information presented at paragraphs 41 and 42 in terms of what issues are reserved and which devolved. They suggested that consideration should be given to the possibility for the Circular including guidance on creating derogations for some small scale projects whereby the decision making could be assigned to one (terrestrial or marine) body even if they overlap. The example was given that provision has been made for similar derogations for electricity generation projects under Section 35 of the Marine (Scotland) Act 2010.

4.35 Additional suggestions for licensing were made. One was to consider pre-application consultations, detailed in appropriate legislation, for the onshore component of development which is consistent with the standard expected for a major application processed through the planning system. The planning authority (consistent with statutory provision onshore) for this would likely be a statutory and/or main consultee for major marine licence and section 36 applications offshore.

4.36 With respect to the roles of Environmental Impact Assessments ( EIAs), there was a suggestion that one EIA should cover an entire development, rather than have separate EIAs for land and marine components. Respondents felt that this would hasten the efficiency of processes.

4.37 Four respondents highlighted the importance of inter-tidal and argued that the requirement for a marine licence and planning permission in inter-tidal zones should be highlighted. One respondent supported the need for the coordination of different consenting regimes and environmental assessment obligations for proposals in the intertidal zone.

Renewable Energy

4.38 The section on renewable energy was generally welcomed by those who commented on it specifically. A small series of issues and clarifications was raised focussing on:

• Paragraph 52: should clearly define between statutory and non-statutory plans.
• Paragraph 54: mention should be made of the possibility that onshore installations will be covered by permitted development rights under Part 13, Class 40, Electricity Undertakings;
• Paragraph 54 - clarification on whether the statutory instrument required to enact the primary legislation is still required;
• Paragraph 54 54 - Encourage good communication and engagement between the two regimes on this issue
• Paragraph 57 - 57 - useful to suggest that the relevant planning authority should be invited onto the Marine Renewables Facilitators Group ( MRFG).

4.39 Looking at paragraphs 51 - 57, one local authority suggested that in order to establish a more efficient licensing system for marine renewable energy, recent changes in UK legislation mean that planning permission is now only required for certain components of marine based electricity generating stations. The value of a more streamlined process was acknowledged, however the respondent suggested that appropriate consideration must be given to the implications of this change through the Circular. They stated that developers should be encouraged to seek early pre-application consultation with planning authorities even if the development may be deemed to have planning permission.

Ports and harbours

4.40 With respect to ports and harbours, one comment was received from an industry / transport organisation who stated that at paragraph 59, the reference to permitted development rights under class 35 is not strictly accurate. Their argument was that rights under Class 29 may vary as they are defined by the terms of the relevant Harbour Revision Order, but rights under Class 35 are specifically defined in the General Permitted Development Order and the extent of them does not vary from harbour authority to harbour authority. They pertain, in the same way, to the Operational Area of each harbour authority.

Coastal defences

4.41 A public sector / regulatory body welcomed paragraphs 61 - 65 relating to coastal defences. However they felt that the title is misleading as the content is more broad and that it would be useful to draw out key points for marine and land use planners. They continued to say that it would be useful to explain that local terrestrial planning authorities are designated as Coastal Protection Authorities whose consent is required for coast protection works to be carried out by other parties.

Aquaculture

4.42 Some of the issues raised at Question 2 which related to aquaculture were consistent with those raised at Question 1. Two aquaculture organisations affirmed the unique nature of aquaculture in that it is covered by two different planning frameworks. One added that the wording of the primary legislation has not taken this into account as, while it requires decisions on authorisations and enforcement to be taken 'in accordance with' the marine plan, it only requires land use planning authorities to 'give consideration' to marine plans when formulating development plan policy. Given that decisions must be made in accordance with development plans, they felt that this creates a significant problem unless Local Development Plans ( LDPs) are reviewed. The organisation stated that as long as terrestrial planning authorities have responsibility for preparing planning policy covering aquaculture in the marine area, and they are only required to 'give consideration' to marine plans in doing so, 'integration' of policy and decision making may be problematic.

4.43 The potential for conflict in this area was highlighted by another aquaculture organisation and it was suggested that if policies for aquaculture in Local Development Plans and marine plans conflict, the latter should take precedence. They raised the points that:

• There is the risk of an uneven playing field between fish farming and other marine development if the different standards are applied in the marine plan and in the LDP; and
• Decision makers cannot fairly judge the weight to be given to policies in either plan if they are not consistent.