Planning Circular 1/2015: relationship between the statutory land use planning system and marine planning and licencing

The circular explains the relationship between the marine and terrestrial planning systems, including related regimes such as marine licencing and consenting for offshore energy generation, ports and harbours development and aquaculture.

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Renewable Energy

64. The Scottish Government is developing sectoral marine plans [9] for offshore [10] wind, wave and tidal energy. The sectoral plans contain Scottish Ministers' spatial strategy to facilitate the sustainable development of commercial scale renewable energy projects by identifying the most suitable locations [11] around Scotland for offshore renewable energy development. Sectoral marine plans are a material consideration in decision making.

65. The National Marine Plan provides the statutory framework and policies within which offshore renewable energy developments are progressed, both at the planning and licensing stages, with terrestrial development plans providing the framework for on shore elements. The National Marine Plan reflects the spatial strategy of the sectoral marine plans. Regional marine plans will implement the National Marine Plan policy at a regional scale.

66. Development plans should provide consistent policy direction and appropriate allocations for the onshore infrastructure requirements which support offshore renewables, such as grid connections, sub-stations, interconnectors, converter stations, testing facilities, manufacturing and assembly facilities, and ports and harbours infrastructure. Development plans should also, as appropriate, recognise and provide for national development 4 - High Voltage Electricity Transmission Network and the coastal areas of coordinated action included in NPF3. Developers, when preparing schemes for off-shore developments, should engage with the appropriate terrestrial planning authority to ensure alignment with any relevant development plans.

Licensing and consenting

67. All proposals for marine renewable energy developments require a marine licence in accordance with the marine Acts. [12] For marine based electricity generating stations in excess of 1 MW out to 12 nautical miles and in excess of 50 MW from 12-200 nautical miles, a 'Section 36' consent is also needed in accordance with the Electricity Act 1989. The Scottish Ministers are the licensing authority in both cases.

68. Where a Section 36 consent is required, special licensing procedures allow Marine Scotland to consider applications for marine licences and Section 36 consents under respective legislation together, providing for a streamlined application process.

Planning permission for onshore components

69. Offshore renewable energy developments are likely to have onshore development requirements such as a substation. Planning permission will in most cases be required for the components of marine based electricity generating stations which are above Mean Low Water Springs.

70. Where Section 36 consents are required, a statutory provision in the Growth and Infrastructure Act 2013 which amends Section 57 of the Town and Country Planning (Scotland) Act 1997, enables Scottish Ministers to direct that planning permission is deemed to be granted for the ancillary onshore components and related onshore infrastructure. This creates a single application process, consented by Scottish Ministers, and means that an applicant does not have to make separate applications for a marine licence and planning permission.

71. Should they choose to do so, developers could still apply separately for a Section 36 consent from Scottish Ministers, and planning consent for the onshore components of an offshore scheme from the relevant terrestrial planning authority. This can provide for some flexibility in the application process. However, Marine Scotland considers that, in most cases, a single consenting process will be more efficient and effective and encourages developers to adopt this process.

72. Section 36 consents are not required in cases where generating capacity is below 1MW capacity out to 12 nautical miles and below 50 MW from 12-200 nautical miles. Instead a separate marine licence for offshore development and planning permission for components above Mean Low Water Springs will be required with the Scottish Ministers and the terrestrial planning authority being the respective consenting bodies.

Statutory consultees

73. Under the Electricity Act 1989 terrestrial planning authorities are not statutory consultees on Section 36 applications for generating stations situated wholly offshore. However, where part of the infrastructure to be covered under the Section 36 consent is to be built onshore then under the Electricity Act the terrestrial planning authority is a statutory consultee on the application as a whole, including the offshore elements.

74. Terrestrial planning authorities are, in all cases, statutory consultees under environmental impact assessment processes relating to Section 36 applications. They are, as a matter of course, consulted on Section 36 applications in full, including for matters not related to environmental impact assessment, and on deemed planning permission for the onshore elements.

75. Terrestrial planning authorities are fully consulted on any application for planning permission for the onshore components of an offshore generating station.

Pre-application consultation

76. Pre-application community consultation is not a statutory requirement for all Section 36 consent applications although it is encouraged by Marine Scotland as good practice. Pre-application consultation is required under the marine licensing scheme for certain activities relating to offshore generating stations which are prescribed activities under the Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013.

77. Pre-application consultation with the terrestrial planning authority is a statutory requirement for any planning applications for onshore development classed as 'major' under the Town and Country Planning (Hierarchy of Development) (Scotland) Regulations 2009, or 'national' under the National Planning Framework. Therefore pre-application consultation with the planning authority will be required if a developer chooses to apply for planning permission separately to a Section 36 consent for a major or national development, or if it is required under the marine licensing scheme.

78. In either event, developers should seek early pre-application discussion with both the marine and terrestrial planning authorities. Good communication and early engagement between Marine Scotland, Marine Planning Partnerships, developers and terrestrial planning authorities on Section 36 applications, including on any onshore components, is important.

Marine Renewables Facilitators Group ( MRFG)

79. To assist in tackling complex issues and/or to resolve areas of dispute in the application process prior to determination, Marine Scotland may decide to bring together an advisory group. This group is formally known as the Marine Renewables Facilitators Group ( MRFG). The group normally comprises representatives of the key regulators and statutory consultees who are suitably experienced and empowered by their organisations to provide advice, guidance and where necessary to agree compromises to assist in finalising a view on an aspect of an application. Membership can include whoever the group considers could assist in the facilitation of advisory and consenting solutions. This is case specific and could involve Marine Planning Partnerships and terrestrial planning authorities.


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