3 Planning Context and Legislation
The Environmental Assessment (Scotland) Act 2005 requires Responsible Authorities to identify the broader regulatory context relating to the Plan that is being assessed. This includes an outline of the relationship of the Plan together with the relevant environmental objectives contained within other relevant Plans, Programmes and Strategies ( PPS).
The draft Plan has been developed in line with Marine Scotland's responsibilities and vision for the environment and in compliance with international and national legislation and relevant guidance. The draft Plan defines a national strategic framework and long term vision for the development of offshore wind energy in STW, including regional level environmental constraints and opportunities.
The draft Plan is influenced by and will influence a variety of other PPS, activities and proposals, undertaken by the government and other organisations including developers and The Crown Estate. These include:
- legislative framework controlling development activities during the various phases of offshore wind development;
- strategic development planning framework; and
- operational and environmental plans for specific SEA receptors.
A review of relevant PPS is therefore an essential component of establishing baseline conditions and the context within which the Plan will operate. Through this process it is possible to establish:
- environmental objectives (translated into ' SEA objectives') that should be included or reflected in the environmental appraisal framework;
- other external factors, including environmental issues, that can be addressed by the Plan; and
- whether policies in other plans and programmes could lead to mutual benefits and cumulative effects in combination with the alternative options.
The relevant aspects of PPS and legislation summarised in this chapter has fed into the objectives described in Chapter 6.
3.2 The Relationship between SEA, EIA and The Crown Estate Exclusivity Agreements
It should be noted that SEA and Environmental Impact Assessment ( EIA) are two different processes. As its name implies, SEA is carried out at the strategic level. It deals with PPS and consequently due to the scale of PPS, it is usually carried out by government. SEAs evaluate the high level and large scale issues associated with PPS, informing wider planning frameworks and helping to guide the development of smaller project level schemes.
The EIA process is part of a development consenting process. It is carried out at the project level by the project proponent once sufficient engineering detail has been identified to define a potential development. It is one component of the consenting process and usually informs a range of licence applications for a development. There is a natural synergy between the SEA and EIA as the information gathered during the SEA is used to inform the EIA. Indeed, the SEA forms an umbrella over all of the development EIAs that may be carried out. The EIA considers site-specific information for a development and a level of detail that it is not feasible to cover at the SEA stage. This SEA considers wind development in the entire STW, and will inform the range of EIAs that will be carried out to support applications for a number of wind energy developments.
The Crown Estate, in consultation with the industry, has identified ten areas that may be suitable for wind energy development. As landowner of the seabed and areas of foreshore and by virtue of The Crown Estate Act 1961, The Crown Estate's permission is required to place structures on or pass cables over the seabed and its foreshore. Developers have been granted exclusivity agreements on these ten options. These agreements grant a developer the exclusive right to explore, assess and develop these options provided that they meet the relevant consenting requirements. In addition, some of the exclusivity agreements provide a mechanism to encourage developers to work together to address cumulative effects and regional issues. The exclusivity agreements are not 'permissions to develop'. The full statutory consenting process involving a number of government departments needs to be applied first. Rather, they are intended as an agreement between the landlord and developers to prevent the marine equivalent of 'gazumping'. Only when all the necessary statutory consents are obtained will The Crown Estate grant a lease for development. The Crown Estate issues leases for the development of sites within the 12nm territorial limit under The Crown Estate Act 1961.
3.3 Relationship with other PPS and environmental objectives
The Environmental Assessment (Scotland) Act 2005 requires that the ER includes an outline of the Plan's relationships with other relevant PPS and how environmental protection objectives have been taken into account in the PPS preparation. This section covers these issues and the policy context within which the Plan will operate and the constraints and targets that this context imposes upon it.
This section summarises the key environmental objectives of the PPS and identifies the key repercussions for the Plan and its SEA under the sub-headings (below) after listing the relevant PPS. The PPS are wide-ranging in scope and content, and a description of each and their relevance, i.e. the PPS which have influenced or will be influenced by the Plan and its SEA, is provided in Table 1 in Appendix 3.1.
Marine and coastal policy
- European Integrated Maritime Policy, 2007
- Our seas - a shared resource 7, 2009
The aim of the European Integrated Marine Policy is sustainable development with its scope covering: an observation and data network; strategies on marine transport, research and mitigation of climate change effects on coastal regions; and a new ports policy. "Our seas - a shared resource" strongly supports the development of renewable energy as central to the sustainable development of STW and sets out high level objectives for the marine environment aligned with those of Scottish Government, and including achieving a sustainable marine economy, a strong, healthy and just society, living within environmental limits, promoting good governance and using sound science responsibly. The SEA of the Plan takes into account the interface between maritime transport needs and renewable energy generation. The Plan will make an important contribution to realising the high level objectives for the Scottish marine environment by balancing energy generation with the need to protect marine ecosystems.
- Scotland's Climate Change Delivery Plan 2009
- Scotland's Climate Change Adaptation Framework, 2009 (Scottish Government, 2009b)
- Renewables Action Plan
The Scottish Climate Change Programme ( SCCP) supported the Scottish Government's commitment to make an equitable contribution to UK targets, under the Kyoto Protocol, and more ambitious domestic goals to identify and realise potential carbon savings. It set out the main policy developments - with the promotion of a renewable energy component of the Scottish economy being central to reduction in greenhouse gas emissions - and activities across a range of sectors in Scotland to address climate change and quantified the Scottish contribution in carbon terms for the first time, through the Scottish Share concept. The SCCP also sets out Scottish Government's role in assisting Scotland to adapt to the unavoidable impacts of climate change, and the mechanisms for moving forward and reporting progress.
The Framework takes forward the adaptation aspects of the SCCP and the need to assist natural resources with climate change adaptation, using examples such as the Central Scotland Green Network proposed in the National Planning Framework.
The Renewables Action Plan, published by the Scottish Government in June 2009, sets out the Government's vision for meeting its renewable energy targets of 31% of Scotland's electricity consumption by 2011 and 50% by 2020. Covering all renewable sectors, including offshore wind, it sets out detailed route maps for the development of each sector.
- Scotland's Bathing Waters, A Strategy for Improvement, 2002
- River Basin Management Plans ( RBMPs) for the Scotland River Basin District and the Solway Tweed River Basin District, both SEPA, 2009
The importance of bathing water quality is considered by the SEA, although it will more appropriately be considered and addressed in detail at the project level. However, the objectives defined by RBMPs are of relevance to the Plan, which seeks to support and avoid conflict with key objectives, such as controls of industrial discharges, the avoidance of pollution by accidental discharges of toxic substances and loss of intertidal areas.
Geology and sediments
- Scottish Soil Framework, Scottish Government, 2009 (Scottish Government, 2009a)
This is an overarching policy framework for protection of soils in Scotland, in line with the expected European Directive. It relates primarily to the onshore environment, though this includes coastal areas. There is little direct interaction with the Soils Framework as the Plan is unlikely to have significant effects onshore beyond coastal areas, but its principles are applicable more widely. Related issues will primarily arise in terms of impacts on the seabed and coastal zone processes.
Landscape and seascape
- Council of Europe, European Landscape Convention, 2000
- SNH Natural Heritage Futures (Draft) 2008 Update: Coasts and Seas
- Scottish Landscape Forum Report to Ministers 'Scotland's Living Landscapes: Places for People'
The Landscape Convention includes marine areas and it is important that the Plan takes into account the quality and character of coastal landscapes and seascapes, to avoid significant adverse effects including cumulative effects. The Plan takes into account the issues and objectives in SNH's Coasts and Seas as updated, particularly in recognising the integrated character of coastal areas and seascapes, and links with other marine activities, including recreation, which are also emphasised alongside environmental objectives. In addition to baseline information it also draws attention to particularly important issues, assets and changes. The objectives in Scotland's Living Landscape focus primarily on land, and it sets out a vision which links into the European Landscape Convention. It also covers the relationship between the coast and the sea, highlighting a range of issues, including attrition of the undeveloped coast.
Biodiversity, flora and fauna
- Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas, 1992 ( ASCOBANS)
- UK Biodiversity Action Plan, 1994 ( UKBAP)
- The Pan-European Biological and Landscape Diversity Strategy, 1995
- Agreement on the Conservation of African-Eurasian Migratory Waterbirds, 1995 ( AEWA)
- EU Biodiversity Strategy, 1998
- International Plan of Action for the Conservation and Management of Sharks, 1999 ( IPOA- SHARKS)
- Scotland's Biodiversity - It's In Your Hands. A strategy for the conservation and enhancement of biodiversity in Scotland, 2004
The high priority given to protection of dolphins, porpoises and whales in ASCOBANS was taken into account in the development of the Plan and its SEA, notably with respect to their migratory nature and their vulnerability to a range of marine activities and issues.
In response to the 1992 Convention on Biological Diversity, the UKBAP describes and makes commitment to protection of the UK's biological resources, prioritising identified species and habitats as conservation priorities, including 87 marine species as well as coastal species and habitats, notably salt marshes and sand dunes, machair, maerl beds, mud habitats in deep water, estuarine rocky habitats, blue mussel beds, carbonate mounds, tide swept channels, reefs and intertidal mudflats. The Plan aims to ensure that development does not adversely affect these priorities.
The Biological and Landscape Diversity Strategy supports the protection of natural heritage and aims to reverse decline in landscape and biological diversity (including traditional man made landscapes, coastal zones, marine areas, wetlands, forests, mountains and grassland), by promoting innovation, proactive policy-making and promoting a number of action themes relating to different environmental resources. The SEA will help to deliver its broader objectives by ensuring that key areas and resources are protected within the Plan.
The AEWA international treaty covers 235 species of birds (including many species of divers, grebes, pelicans, cormorants, herons, ducks, swans, geese, cranes, waders, gulls, and terns) ecologically dependent on wetlands and promotes an action plan for species and habitat conservation, management of human activities, research and monitoring, education and information. The Plan takes into account the priority afforded to protect bird species in the Scottish marine environment.
The EU Biodiversity Strategy aims to "anticipate, prevent and attack" any reduction or loss of species and habitats, noting the importance of biodiversity outside as well as within protected areas, and agriculture and its role in relation to biodiversity conservation. It supports implementation of the Habitats and Birds Directives and networks of protected sites, aiming to achieve conservation by planning for priority resources. The Plan and its SEA supports these objectives, within and outside of formally protected areas.
The IPOA- SHARKS aims to ensure the conservation and management of sharks and their long term sustainable use. The high level of protection afforded to the 25 species of sharks (a high proportion of which are already or nearly at risk) in Scottish waters is supported as far as possible in the Plan.
Scotland's Biodiversity - It's In Your Hands sets out Scotland's biodiversity aims over a 25-year period, building on previous emphasis on protecting individual sites to achieve conservation at a broader scale. It aims to halt loss and reverse decline of key species, raising awareness of biodiversity value at a landscape or ecosystem scale, and promoting public knowledge, understanding and involvement. It notes the importance and health of Scotland's marine ecosystems, and summarises key trends including improvements to water quality and pressure on commercial fish stocks leading to greater reliance on deep sea waters with ecological consequences. The Implementation Plan for Marine Biodiversity notes the various pressures on marine biodiversity and aims to ensure effective communication to achieve better co-ordinated action. The Plan (for Offshore Wind) will support this, including steering development away from the most sensitive parts of the marine environment.
- Scottish Historic Environment Policy ( SHEP), 2008
- SHEP on the Marine Historic Environment (Consultation Document) 8
- Joint Nautical Archaeology Policy Committee ( JNAPC) Code of Practice for Seabed Developers, JNAPC, 2007
The SHEP provides the overarching framework for historic environment policy in Scotland. Its aims, including protecting, promoting effective conservation and enhancing enjoyment of the historic environment, have been taken into account in development of the Plan. The provisions of the Marine (Scotland) Act 2010 relating to the historic environment incorporate the proposals from the SHEP on the marine historic environment. The guidance for seabed developers to use in conducting activities in an archaeologically sensitive manner (with a specific note for the offshore renewable energy sector in the voluntary JNAPC Code) was also noted within the development of the Plan.
3.4 Other developments in or adjacent to STW
There are a number of other developments or plans for development in or adjacent to STW that were taken into account in the development of the Plan and its SEA. These are shown in Table 3-1.
3.5 National Planning Legislation and Policy
The purpose of the terrestrial planning system in Scotland is to direct future development and use of land. The Planning etc. (Scotland) Act 2006 and associated legislation - the development planning provisions and regulatory framework are put in place by The Town and Country Planning (Development Planning) (Scotland) Regulations 2008 - extend statutory planning control to the mean low water mark of ordinary spring tides and to marine fish farming. The new marine planning system being introduced through the Marine (Scotland) Act 2010 will guide decision-making for off-shore development extending to the mean high water mark. This indicates an overlap of the two planning systems within the inter-tidal area. It should be noted that the marine planning system is currently in its early stages.
Table 3-1: Other developments in or adjacent to STW
Nature of development
Robin Rigg Offshore Wind Farm
Operational wind farm in Solway Firth. Currently UK's largest offshore wind farm with 60 turbines.
Beatrice Demonstrator Project
Operational wind farm in Moray Firth. This was a deep water evaluation project with 2 turbines.
Round 3 Offshore Wind Zone 1 - Moray Firth
Award of leases to developers for this round of wind farms was done in January 2010. Construction unlikely to start before 2012.
Round 3 Offshore Wind Zone 2 - Firth of Forth
Onshore wind farms
Number of sites already developed or proposed for development.
Sound of Islay Tidal Energy Project
Demonstration tidal array of ten 1 MW devices to be placed in the sound of Islay.
Pentland Firth and Orkney Waters wave and tidal energy
Lease agreements announced by the Crown Estate in March 2010 for Pentland Firth and Orkney Waters.
Waterfront regeneration project at Leith
Waterfront regeneration project at Dundee
Forth replacement crossing
New bridge to west of existing Forth Road Bridge. Construction due 2011-2016.
Cockenzie Power Station
An existing 1200 Megawatt coal fired power station at Cockenzie
Part 1 of the Planning etc. (Scotland) Act 2006 establishes a statutory basis for a National Planning Framework ( NPF) for Scotland. The purpose of The NPF is to outline a spatial strategy to deliver Scottish Government's over-arching economic strategy. A key objective of the second NPF is to promote sustainable development, recognising that, in addition to greenhouse gas reduction, this is also about conserving natural resources, including wildlife and habitats (and including the need to plan for climate change adaptation, including flooding and long term species migration).
The second NPF for Scotland was published in 2009. It designates fourteen transport, energy and environmental infrastructure projects as 'national developments'. This includes electrical grid reinforcements across Scotland, linking with peripheral regions to support renewable energy development.
The NPF emphasises that the aim of national planning policy is to promote renewable energy development whilst safeguarding the environment and communities. Subject planning policies have been consolidated into a single Scottish Planning Policy, published in 2010. This document sets out national policy for coastal planning and renewable energy. In particular, coastal planning, Marine Planning Partnerships and Local Planning Authorities are encouraged to work in partnership to deliver off-shore renewable energy generation projects, which require terrestrial-based infrastructure (para 99). National policy also requires local development plans to "take into account the infrastructure and grid-connection needs of the off-shore renewable energy generation industry" (para 192). This includes identifying appropriate locations for ancillary facilities and services (para 192).
Part 2 of the Planning etc. (Scotland) Act 2006 modernised the development planning process in Scotland. Strategic and Local Development Plans are currently being prepared by planning authorities. These have not been individually reviewed for the purpose of this SEA.
The key legislation relevant to the above sections is provided below, under sub-headings indicating whether derived at international, European or national (Scottish / UK) levels, followed by a summary of their key aims and repercussions for the Plan and its SEA. A full list of legislative drivers together with the objectives of the legislation and its relevance to the Plan is provided in Table 1 in Appendix 3.2.
Marine and coastal
- Directive 2008/56/ EC, 2008, European Marine Strategy Framework Directive, ( MSFD) (not yet in force)
- Coast Protection Act, 1949 (as amended by The Coast Protection (Notices) (Scotland) Regulations 1988 and The Coast Protection (Notices) (Scotland) Amendment Regulations, 1996) ( CPA)
- Marine and Coastal Access Act, 2009 and Marine (Scotland) Act, 2010
The MSFD sets out the overarching EU protective policy for the marine environment. It extends the requirements of the Water Framework Directive ( WFD) into seas beyond 1 nautical mile (nm) (1.8km). It requires Member States to "take necessary measures to achieve or maintain good environmental status (" GES") in the marine environment by the year 2020 at the latest". The SEA ensures that the Plan minimises adverse environmental effects on the marine environment.
The CPA and associated Regulations set out the licensing and regulatory framework for coastal activities, notably with respect to flood defence and to ensure safety in navigation. Coastal Local Authorities are given specific duties and powers to undertake coastal defence works. The Plan takes into account their aims and ensure that the Plan complies with provisions for coastal and navigational protection.
The UK Marine and Coastal Access Act 2009 covers: the creation of a Marine Management Organisation ( MMO); planning in the marine area; licensing activities in the marine area; marine nature conservation; managing marine fisheries; reform of inland and migratory fisheries; modernisation and streamlining of enforcement powers; administrative penalties scheme for domestic fisheries offences; and access to coastal land. It sets out the context within which Scottish proposals for marine planning and management are being developed.
The Marine (Scotland) Act 2010 aims to protect Scotland's marine environment whilst facilitating sustainable economic growth. It introduces: a new statutory marine planning system to sustainably manage demands by users; a simpler licensing system; improved marine nature and historic conservation with new powers to protect and manage areas of importance for marine wildlife, habitats and historic monuments; improved protection for seals; and enforcement powers. The Act provides the key policy objectives of relevance to the development of the Plan and provides the foundation for all policies and proposals relating to offshore wind energy. The Scottish Government will, under the Act, introduce Marine Planning (Scottish Government, 2009). The full details of this have not yet been defined, but over the next few years a national marine plan and regional marine plans for regions that are subject to development pressures, are expected. The SEA will take into account future spatial planning of Scotland's seas and contribute to the longer term development of an information base.
- Directive 2009/28/ EC, 2009, EU Renewable Energy Directive
- Climate Change (Scotland) Act, 2009
- Electricity Act, 1989
- Energy Act, 2004
The EU Renewable Energy Directive establishes a legislative framework for complying with Kyoto Protocol and United Nations Framework Convention on Climate Change agreements to reduce greenhouse gas emissions. Article 3 and Annex I of the Directive establishes national targets for member states, requiring the UK to provide 15% of its gross final energy consumption from renewable sources by 2020. Article 4 mandates that member states adopt national renewable energy action plans for achieving these targets. Directive mandates must be implemented by December 2010.
The Climate Change (Scotland) Act includes: a greenhouse gas emissions reduction target of 80% by 2050 and an interim target of 42% by 2020; requirements for annual reporting; and provisions for meeting targets through additional policies and legislation. The growth of renewable energy is a central feature of greenhouse gas emissions reduction in Scotland and the contribution of the Plan to the objectives of the Act is explored within the SEA.
The Electricity Act provides the legislative background within which the energy sector functions and the framework within which applications for marine energy development should seek consent, with related Regulations defining EIA responsibilities. The Plan will be recognised as fitting within a broader consenting framework, with more detailed applications and environmental assessments being required for individual projects.
The Energy Act covers the wider energy industry as well as renewable energy, aiming to achieve diversification of supply in favour of renewable sources. It augments the system for determining developments in territorial waters and provides The Crown Estate with rights to license the generation of renewable energy and grant leases for development sites out to 200nm. Both the broad aims and more specific requirements of the Act was taken into account in the development of the Plan.
- International Maritime Organisation ( IMO) International Convention for the Prevention of Pollution from Ships, 1973 ( MARPOL)
- London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (as amended)
- The Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 (the OSPAR Convention)
- Directive 2008/56/ EC, 2008, European Marine Strategy Framework Directive, ( MSFD) (not yet in force)
- Directive 2000/60/ EC, 2000, Water Framework Directive ( WFD) and Directive 2006/7/ EC, 2006, Bathing Waters Directive ( BW)
- Directive 96/61/ EC, 1996, Integrated Pollution Prevention and Control Directive( IPPC)
- Pollution Prevention and Control Act, 1999 and Pollution Prevention and Control (Scotland) Regulations, 2000
- Water Environment and Water Services (Scotland) Act, 2003 ( WEWS Act)
- Water Environment (Controlled Activities) (Scotland) Regulations, 2005 (the ' CAR regulations')
- Bathing Waters (Scotland) Regulations, 2008
- Flood Risk Management (Scotland) Act, 2009
The MARPOL Convention covers the management of various forms of pollution and aims to prevent marine pollution from ships and, in part, from oil rigs and production platforms. The London Convention prohibits the dumping of certain hazardous materials and requires permits for the dumping of other wastes or materials. It also creates a basis in international law to allow and regulate carbon capture and storage ( CCS) in sub-seabed geology. The Plan refers to the broader protection provided by both Conventions.
The WFD provides an overarching strategy and requirement for EU Member States to ensure that their water bodies achieve 'good ecological status' by 2015, with River Basin Management Plans defined as the key means of achieving this, as covered in Section 3.3. The more recent MSFD (see "Marine and coastal" heading, further above) extends the coverage of coastal waters beyond 1nm. The WEWS Act transposes the WFD in Scotland, aiming to protect the water environment by ensuring a reliable and high quality supply of water, reducing groundwater pollution, and protecting marine and other waters. Consistence with the above, the Plan aims to support the protection of the water environment.
The Bathing Water Directive is enacted by the Bathing Waters (Scotland) Regulations, and aims to protect the public and the environment from faecal pollution at waters used for bathing by large numbers of visitors, and sets clear standards to be met by 2015. The importance of protecting water quality in recognised bathing locations is supported by the Plan.
The MSFD requires member states to national strategies to manage their seas (from 0-200 miles (321km)) in order to achieve or maintain Good Environmental Status ( GES) by 2020. The directive came into force in 2008 and is currently undergoing consultation to be transposed in the UK. Assessments of the current state of UK seas and identification of target indicators are to be undertaken by July 2012.
OSPAR has achieved international co-operation to protect the marine environment of the North Atlantic, including biodiversity. The convention was adopted in 1992 and came into force in 1998, replacing the Paris and Oslo conventions. It has implemented five strategies to assess and monitor the status of the marine environment, including: Biological Diversity and Ecosystems; Eutrophication; Hazardous Substances; Offshore Oil and Gas Industry; and Radioactive Substances. It will also be responsible for delivering aspects of the MSFD.
The Pollution Prevention and Control Act and Regulations implement the IPPC Directive, to regulate industrial and commercial activities, which may cause environmental pollution and to prevent and control emissions that are capable of causing pollution. The Plan and its SEA take into account wider pollution prevention measures relating to the water environment.
The ' CAR regulations' set out the process by which activities that have the potential to affect Scotland's water environment are regulated, with prior authorisation under these being required for discharge to waters, disposal of pollutants to land, abstraction, impoundment and engineering works affecting water bodies. These are important instruments for mitigating adverse effects on the water environment at the project level, and are taken into account in the SEA of the Plan.
The Flood Risk Management (Scotland) Act includes new measures for sustainable flood risk management, in including co-ordination and co-operation between relevant organisations, development of flood risk assessment, planning and tools for delivery and enforcement. It is applicable to coastal flood protection measures and links with the CPA and associated Regulations identified under the "Marine and coastal" heading above. Coastal flood risk management is taken into account within the Plan.
Landscape and seascape
- Convention concerning the Protection of the World Cultural and Natural Heritage ( UNESCO), 1972
- Council of Europe, European Landscape Convention Florence, 2000
- Natural Heritage (Scotland) Act 1991
- The Planning etc. (Scotland) Act 2006
The World Heritage Convention established the World Heritage List, which currently includes 890 properties considered to have Outstanding Universal Value. In ratifying the Convention, the UK Government has agreed to duties including: identifying potential sites to add to the List and ensure the protection and preservation of listed sites; producing and maintaining a management plan for each listed property protecting its Outstanding Universal Value; providing periodical updates to the World Heritage Committee on the state of listed properties. WHSs of relevance to the Plan and SEA include Heart of Neolithic Orkney and St Kilda. The Plan and its SEA take into account the potential effects of plans for offshore wind energy on listed sites, and commitments to protecting listed sites through the selection of appropriate options for development.
The European Landscape Convention is based on the fundamental acknowledgement that "the landscape is an important part of the quality of life for people everywhere: in urban areas and the countryside, in degraded areas as well as in areas of high quality, in areas recognised as being of outstanding beauty as well as everyday areas". Importantly, it defines landscape in relation to people; "an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors". Its aims are "to promote landscape protection, management and planning, and to organise European co-operation on landscape issues". The Plan and SEA take into account the broader recognition of the landscape's importance in quality of life and, notably, in its being defined in relation to perception by people. The key issue for landscape impact is the interaction between the sea and the coast and the national protection given to landscape protected areas (such as National Scenic Areas and, in England, Heritage Coast).
The Natural Heritage Act established Scottish Natural Heritage, its general aims, functions and duties in Scotland to secure the conservation and enhancement and to foster understanding and facilitate the enjoyment of Scotland's natural heritage with regard to doing so in a sustainable manner. The Plan and SEA takes into account these broader conservation objectives.
As noted previously, the Planning Act introduces wide ranging changes to the planning system in Scotland including the establishment of a National Planning Framework, and provides the legislative framework for National Scenic Areas. The wider relevance of the Act is covered under Section 3.5 on the Planning Framework in Scotland. With respect to landscape and seascape, the Plan and its SEA take into account the potential effects of plans for offshore wind energy on National Scenic Areas.
Biodiversity, flora and fauna
- Convention on Wetlands of International Importance (the Ramsar Convention), 1971 (amended 1982/87)
- Convention for the Protection of the Marine Environment of the North-East Atlantic ( OSPAR Convention), 1992
- UN Convention on Biological Diversity, 1992
- Agreement on the Conservation of African-Eurasian Migratory Waterbirds, 1995 ( AEWA)
- Convention for the Conservation of Salmon in the North Atlantic Ocean, 1983 ( NASCO)
- Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 ( UN Fish Stocks Agreement)
- Directive 92/43/ EEC, 1992, Habitats Directive and Directive 79/409/ EEC, 1979, the Birds Directive
- Bern Convention on the Conservation of European Wildlife and Natural Habitats, 1979
- Agreement on the Conservation of Small Cetaceans of the Baltic, North East Atlantic, Irish and North Seas, 1992 ( ASCOBANS)
- The Conservation (Natural Habitats, &c) Regulations, 1994 (the Habitats Regulations) and The Offshore Marine Conservation (Natural Habitats, &c) Regulations, 2007 (Offshore Marine Regulations)
- Nature Conservation (Scotland) Act, 2004
- Wildlife and Countryside Act, 1981 (& as amended)
- Conservation of Seals Act, 1970
- The Salmon and Freshwater Fisheries (Consolidation (Scotland)) Act 2003
The Ramsar Convention emphasises the special value of wetland, particularly as a key habitat for waterfowl, and resulted in designation of numerous wetland sites for management and conservation. The Plan and its SEA support commitments to environmental protection.
The OSPAR Convention, as described above, led to establishment of a cross-regional commission, promoting an ecosystems approach to marine management, including establishment of a network of Marine Protected Areas. It covers biodiversity and ecosystems, eutrophication, hazardous substances, offshore industry and radioactive substances, with climate change as a key cross-cutting theme. The commission has produced specific guidance on offshore cables and research on offshore wind energy. The ecosystems approach to marine planning is taken into account within the Plan.
The UN Convention on Biological Diversity requires the: development of national biodiversity strategies plans or programmes; the integration of the provisions of these across other policy sectors; the identification of key resources and their protection; and monitoring of potentially damaging process and activities. This broader framework sets the context for developing environmental protection objectives, the principles of which are supported by the Plan and its SEA.
The Bern Convention promotes co-operation between European states to protect biodiversity and its broader framework for environmental protection across Europe and is supported by the Plan.
The AEWA treaty covers 235 species of birds (including many coastal and marine species) ecologically dependent on wetlands and promotes an action plan for species and habitat conservation, management of human activities, research and monitoring, education and information. The Plan takes into account the priority afforded to protect bird species in the Scottish marine environment.
The Habitats Directive established a commitment to designating networks of sites of ecological importance across Europe. These are known as Natura 2000 sites and include Special Protection Areas ( SPAs) and Special Areas of Conservation ( SACs) - see Section 5.5. The Habitats Regulations apply within 12 nm of the coast and transpose the requirements for protection of designated sites under the Habitats and Birds Directives, and the framework for protection of European Protected Species. Several marine species (including marine turtles, all species of dolphins, porpoise and whale, seals and several types of marine fish (Atlantic salmon, barbel etc.) are protected by various development consenting regimes covered. The Offshore Marine Regulations extend protection to important species and habitats under the Habitats and Birds Directives beyond UK territorial waters (i.e. outside 12 nm). They give protection to marine species, wild birds and habitats, mainly through the creation of offences and site protection mechanisms, and define the "deliberate disturbance" applicable to cetaceans, turtles and the Atlantic sturgeon. The Plan and its SEA takes into account the potential effects of plans for offshore wind energy on Natura 2000 sites, and the particular protection to be afforded to key marine species and sites, which form part of the Natura 2000 network. Objectives to protect important species and habitats, including internationally designated sites, is sustained through the selection of appropriate options for development and taken into account in the SEA.
The Nature Conservation (Scotland) Act introduced a 'duty to further the conservation of biodiversity' for all public bodies, and sets out more specific provisions within this including for SSSIs. It also requires the preparation of a Scottish Biodiversity Strategy, to which all public bodies should pay regard. It extends protection measures for marine species to 12nm around Scotland. The biodiversity protection objectives cover the coast and immediate offshore environment.
The high priority given to protection of dolphins, porpoises and whales in ASCOBANS is taken into account in the development of the Plan and its SEA, notably with respect to their migratory nature and their vulnerability to a range of marine activities and issues.
The Conservation of Seals Act provides for the protection and conservation of seals in Scottish marine waters and adjacent territorial seas. The Habitats Directive and the Conservation (Natural Habitats, &c) Regulations (see below) introduced additional measures for the protection of seals, all of which are taken into account in the development of the Plan.
The Wildlife and Countryside Act provides the framework for protection of species other than European Protected Species, setting out objectives for specified birds and wild animals. It details the protected species, including dolphins, porpoises and numerous birds. Its December 2008 update recommended its list of marine fish should be extended, including shark, seahorse and ray species. The Plan and its SEA takes into account the particular protection afforded to key marine species.
The Salmon and Freshwater Fisheries (Consolidation (Scotland)) Act 2003 makes provision for the conservation and sustainable management of salmon fisheries. Part 2 of the Act gives Scottish Ministers the power to designate any coastal area as a salmon fishery district. This can extend seaward for 5km from the mean low water springs and landward to include river catchment areas. This designation protects a coastal area against any development which could adversely impact on the existing salmon population.
NASCO created protection zones for targeted salmon fisheries in most areas beyond 12 nautical miles (22km) from the coast. The most recent implementation plan was produced in Scotland in February 2008 setting regulations for salmon fisheries management, including regulating permits and salmon season timescales, fishing methods, catch quotas and monitoring requirements.
The UN Fish Stocks Agreement establishes international co-operation to improve the management of fishing on the high seas, particularly with regard to conserving straddling and highly migratory fish stocks. It implements the UN Convention of the Law of the Sea of 10 December 1982. The aim of the agreement is to protect the marine environment, including biodiversity, prevent over-fishing and protect the interest of artisanal fishers. This is implemented through a strategy to undertake research, assessment and monitoring programmes.
Population and human health
- Directive 96/82/ EC, 1996, Seveso II Directive
- Food and Environment Protection Act, 1985 ( FEPA)
- Control of Major Accident Hazard ( COMAH) Regulations, 1999 and amended in 2005
- Land Reform (Scotland) Act, 2003
Part II of FEPA protects the marine ecosystem and human health by controlling the deposit of articles or materials (or scuttling of vessels) in the sea or tidal waters. The Plan ensures that it supports the objectives of the legislation, including protection of human health by protection of the sea.
The COMAH Regulations identifies dangerous substances and implements the Seveso II Directive (96/82/ EC). The Regulations are relevant to the chemical industry, some storage activities, explosives and nuclear sites, and other industries using dangerous substances.
The Land Reform Act provides a new right of responsible access in Scottish onshore, inland water and coastal environments, and makes provision for community right to buy. Core paths are to be identified in each local authority area and established in an adopted plan, promoting more widespread functional and recreational access and supporting improved levels of physical activity. The Plan ensures that developments do not adversely impact on areas or activities of particular interest to recreational users.
- UNESCO Convention on the Protection of the Underwater Cultural Heritage (2001); UN Convention on the Law of the SEA ( UNCLOS) 1982, ratified by the UK in 1997
- Protection of Wrecks Act, 1973
- Ancient Monuments and Archaeological Areas Act, 1979
- Military Remains Act, 1986
The UNESCO Convention creates an international legal framework to regulate underwater cultural heritage. Although not signed by the UK, many of its principles are supported. The UNCLOS Convention was ratified in the UK, putting in place duties to protect objects of an archaeological and historical nature found at sea and to co-operate for this purpose' and providing for coastal states to exert a degree of control over the archaeological heritage to 24 nm offshore. The Plan seeks to support the UNESCO and UNCLOS Convention's commitments to protect the offshore historic environment.
The Protection of Wrecks Act protects designated wrecks and provides for the designation of dangerous sites. Development of the Plan has taken into account effects on protected wrecks.
The Ancient Monuments and Archaeological Areas Act is administered by Historic Scotland and provides for the scheduling of 'monuments', primarily in terrestrial locations, but there is provision to designate submarine sites. The Plan ensures that, as far as possible, areas with significant archaeological interest or areas covered by the Military Remains Act are avoided and/or effects during construction are mitigated.