Marine licensing and consenting: offshore renewable energy projects

Application process and timescales

This section describes the application process and timescales for consent under section 36 of the Electricity Act 1989 (section 36 consent) and/or for marine licences required for offshore renewable energy generating stations and transmission infrastructure. Decommissioning of offshore renewable energy infrastructure is likely to require a separate marine licence, which follows a similar process and timescales.

Pre-application

During the pre-application stage, prospective applicants should consider carrying out the following steps:

•  pre-application engagement with stakeholders
• request an EIA screening opinion from MD-LOT
• request an EIA scoping opinion from MD-LOT
• engagement on any Habitat Regulations Appraisal (HRA) requirements with relevant stakeholders
• engagement on any Marine Protected Area (MPA) assessment requirements with relevant stakeholders
• undertaking impact/risk assessments required and identifying any mitigation and monitoring
• producing an EIA report and any other information to support an application
• statutory marine licensing Pre-Application Consultation requirements (0-12 nm)
• preparing and submitting marine licence applications for all ‘licensable marine activities’ and applications for licences to disturb a European Protected Species or basking shark  which may be required during this pre-application stage

Pre-application timescales depend on matters such as the assessments required, technology type, scale and location of a project and therefore may be subject to some variation.

Environmental impact assessment (EIA) screening opinion timescales

MD-LOT begins consultation with stakeholders on a request for a screening opinion within three weeks of the request being received, providing that all the necessary information has been submitted by the prospective applicant. The stakeholders consulted have three weeks or 28 days (depending on the location of the project) to provide representations or such longer period agreed between the consultee and MD-LOT. Where consultation extensions are granted to stakeholders, the prospective applicant will be advised.

MD-LOT aims to issue an EIA screening opinion within three weeks of the closure of the consultation period, unless a longer period (of up to 90 days from receipt of the request by MD-LOT) is agreed with the applicant. Under exceptional circumstances, where the Scottish Ministers consider that it is not practical to adopt screening opinion within 90 days of a request being received, the period may be extended by way of written notice.

Environmental impact assessment (EIA) scoping opinion timescales

MD-LOT consults stakeholders on a request for a scoping opinion within three weeks of the request being received, providing that all the necessary information has been submitted by the prospective applicant. The stakeholders consulted have 28 or 30 days (depending on the location of the project) to provide representations or such longer period agreed between any stakeholder and MD-LOT. Where consultation extensions are granted to stakeholders, the prospective applicant will be advised.

MD-LOT aims to adopt an EIA scoping opinion within four-five months of receiving a request for a scoping opinion.

Statutory marine licence Pre-Application Consultation

If the project for which a marine licence is being applied requires statutory Pre-Application Consultation in accordance with the Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013 and the Marine (Scotland) Act 2010, the prospective applicant must publish a notice of an consultation event in a newspaper and notify consultees at least six weeks before an event is held. A period of at least 12 weeks must elapse between notifying consultees and submitting an application.

The consultation event must have been held within one year of submitting an application to MD-LOT.

Other timescales

Some projects may require other licences or approvals and notifications for example, certain exemptions from a marine licence, marine licences, licences to disturb European Protected Species or basking sharks. Prospective applicants should consider the timescales and whether there are any other relevant or pre-application requirements.  

Application submitted by applicant

Applications for a marine licence and section 36 consent should be made at a time when there is sufficient certainty in project parameters and proposals to enable the required information to be submitted and to enable determination of an application. High quality applications, made at the right time, will allow MD-LOT to meet determination times, allow stakeholders to make informed representations, reduce the risk of requiring additional information and reduce resource needs and timescales at the post-consent stage.

Application determination by MD-LOT

Timescales

MD-LOT aims to determine applications for a marine licence and section 36 consent within nine months of the start of consultation where no derogation under the Habitats Regulations is required; and within 12 months where derogation is required.

These timeframes are indicative only and do not account for any time where additional information is required to be submitted by an applicant, any additional public consultation period, or any time required where a public inquiry is held. These timeframes are not statutory and depend on the quality of the application submitted.

Public consultation on applications

Applicants are required to publish a notice of application in newspapers, the Edinburgh Gazette and the relevant website. This allows the public to make representations to MD-LOT on applications for section 36 consents, marine licences and the associated Environmental Impact Assessment reports. MD-LOT will also make the notice of an application available on the Marine Directorate Information website.

The notice of application will provide the public with information which includes, what is being applied for, how to access further information on the application and how and when to submit representations. See our guidance on making a representation for further information.

Prior to an application for a section 36 consent and/or a marine licence, MD-LOT will provide the applicant with a template for the public notice. The template will provide information on the requirements of the relevant legislation. The completed template should be submitted with an application.  Public notices of application should not be published until MD-LOT has approved the text.

Timescales for the public to make representations are set out in the relevant legislation and can be either 30 days or 42 days (depending on the location of the project). Where multiple timescales apply to an application, the longer of the timescales will be followed.

Consultation with stakeholders on applications

MD-LOT consults stakeholders directly on applications alongside EIA reports.

MD-LOT carries out consultation with stakeholders at the same time as the public consultation. Timescales for stakeholder consultation are set out in legislation and can be either 30 days or 42 days depending on location. Where multiple timescales apply to an application, the longer of the timescales will be followed. A longer period for consultation may be agreed between a consulted stakeholder and MD-LOT.

Consultation process with relevant planning authorities on section 36 consent applications

Where all of the generating station is offshore (below mean low water spring tide), and no deemed planning is proposed for onshore generating station infrastructure, planning authorities will be consulted in accordance with applicable EIA regulations.

There are no relevant planning authorities for applications to construct or operate generating stations for the purposes of the Electricity Act 1989 where generating stations are below mean low water spring tide. Therefore, provisions and timescales in which the ‘relevant planning authority’ can serve a notification of an objection set out in the Electricity Act 1989 and the Electricity (Applications for Consent) Regulations 1990, do not apply to offshore projects.

If part of a generating station is onshore (above mean low water spring tide), the relevant planning authority in that location will be consulted. In these circumstances, provisions and timescales in which the relevant planning authority can serve a notification of an objection under the Electricity Act 1989 and the Electricity (Applications for Consent) Regulations 1990 apply. The relevant planning authority can serve a notification of any objection within four months of the date of the section 36 application. If the relevant planning authority notifies its objection within four months of the date of application, an automatic public inquiry will be held. In these circumstances, the public inquiry will be confined to the onshore element of the application unless otherwise directed by the Scottish Ministers.  

Gap analysis on public and consultee representations

MD-LOT will pass representations from consultees and redacted public representations to the applicant who will create a gap analysis and provide information on their views or action taken in response to each of the consultee comments. MD-LOT will review the gap analysis and identify where issues have not been taken into account or have not been taken into account in a sufficiently complete way. Applicants will be advised to rectify any gaps prior to determination of the application.

Supply of information, additional information, relevant further information

Applications must include sufficient supporting information to enable MD-LOT to make a determination or recommendation.

Under marine licensing provisions, the Scottish Ministers may require an applicant to supply information or produce articles which may be necessary to determine an application for a marine licence.

Under the Electricity Works (EIA) (Scotland) Regulations 2017 and the Marine Works (EIA) (Scotland) Regulations 2017, Scottish Ministers may require an applicant to provide additional information (or relevant further information under the Marine Works (EIA) Regulations 2007) which may be necessary to determine an application for a marine licence or section 36 consent . Additional information may be supplementary information (or relevant further information) required to reach a reasoned conclusion on the significant effects on the environment of the works. Additional information may also be any other information provided by the applicant which, in the opinion of the Scottish Ministers, is substantive information about a matter to be included in the EIA Report. Where additional information (or relevant further information) is provided to the Scottish Ministers in response to a request, the additional information must be publicised and consulted on, in a similar way to the application and EIA Report.

Public inquiry

Before determining an application for a marine licence or section 36 consent, Scottish Ministers may decide to hold a public inquiry. In relation to a section 36 consent application, where objections, or copies of objections, have been sent to the Scottish Ministers, the Scottish Ministers shall consider those objections together with all other material considerations with a view to determining whether a public inquiry should be held with respect to an application.

For section 36 consent applications where part of a generating station is above mean low water spring tide, a public inquiry is held automatically where the relevant planning authority notifies its objection within four months of the date of application. In this circumstance, the public inquiry will be confined to the onshore element of the application unless otherwise directed by the Scottish Ministers.

Determination of applications for marine licences and section 36 consents

Scottish Ministers will take all legislative requirements, relevant policies, representations made by statutory and non-statutory consultees and representations from members of the public into consideration when determining an application for a marine licence and section 36 consent.

Should an application for a marine licence or section 36 consent be refused, MD-LOT will advise on the reasons. Applicants can revise and resubmit applications if refused.

Section 36 consents and marine licences are usually granted subject to conditions, to which the consent-holder or licensee will be required to adhere. Conditions will not be used as a means of shortcutting the consenting or licensing processes or employed on a purely precautionary basis.

When considering conditions Scottish Ministers have regard to the six criteria for planning conditions which are set out in the Scottish Government Planning Circular 4/1998:

• necessary
• relevant to planning
• relevant to the development to be permitted
• enforceable
• precise
• reasonable in all other respects

Decision notices and notification of decisions

Where an EIA application is determined, a decision notice will be issued which will include information as required under the relevant EIA Regulations. EIA regulations specify the information which must be included, such as:

• a description of the development
• the terms of the decision
• the main reasons and considerations on which the decision is based
• a summary of the environmental information
• a summary of the results of the consultations
• information about the arrangements taken to ensure the public had the opportunity to participate in the decision-making procedures
• other information described in the relevant EIA regulations

Applications for projects in Scottish inshore waters (0-12 nautical miles):  The Marine Works (EIA) (Scotland) Regulations 2017, The Electricity Works (EIA) (Scotland) Regulation 2017.

MD-LOT sends the decision notice to the applicant.

MD-LOT sends a copy of the decision notice to:

• any planning authority considered appropriate
• the consultation bodies
• any such other public bodies consulted

MD-LOT publishes, on a website, a description of the works, the terms of the decision and details of how a copy of the decision notice is available for inspection.

The applicant must, as soon as reasonably practicable after receiving the decision notice, publish a notice containing a description of the works, the terms of the decision and details of how a copy of the decision notice is available for inspection:

• on the application website
• in The Edinburgh Gazette
• in the same newspaper or publications as the application notice was advertised

MD-LOT provides a template for the notice, which includes the requirements of the relevant EIA regulations. The template should be completed to provide a draft notice and be submitted to MD-LOT for approval. The notice should only be published once a draft notice has been approved by MD-LOT.

Once published, proof of publication must be provided to MD-LOT.

If an application  under Section 36A of the Electricity Act 1989 for a declaration extinguishing public rights of navigation is also made, there is a requirement on Scottish Ministers or the applicant to publish the declaration or determination in such manner as appears to the Scottish Ministers to be appropriate for bringing it, as soon as is reasonably practicable, to the attention of persons likely to be affected by it.

Applications for projects in Scottish offshore waters (12-200 nautical miles): The Marine Works (EIA) Regulations 2007, The Electricity Works (EIA) (Scotland) Regulation 2017.

MD-LOT sends the decision notice to the applicant.

MD-LOT sends a copy of the decision notice to:

• any planning authority considered appropriate
• any person who made representations on the application pursuant to the publicity statement
• the consultation bodies
• any other public bodies consulted

• the authorities of any EEA State who were consulted on the application

MD-LOT publishes, on a website, a description of the works, the terms of the decision and details of how a copy of the decision notice is available for inspection.

The applicant must, as soon as reasonably practicable after receiving the decision notice, publish a notice containing a description of the works, the terms of the decision and how a copy of the decision notice is available for inspection:

• on the application website
• in The Edinburgh Gazette
• in the same newspaper or publications as the application notice was advertised

MD-LOT provides a template for the notice which includes the requirements of the relevant EIA regulations. The template should be completed to provide a draft notice and submitted to MD-LOT for approval. The notice should only be published once a draft notice has been approved by MD-LOT.

Once published, proof of publication must be provided to MD-LOT.

As soon as possible after the decision notice is sent to the applicant, MD-LOT ensures that the decision notice is:

• published on its website
• published in those newspapers or other publications where the application was published
• promptly made available for public inspection

Post-determination

It is the responsibility of the licensee to meet all conditions of the marine licence and section 36 consent. Conditions can be applicable prior to and during construction, as well as throughout the operation or decommissioning phases.

Some conditions may require to be discharged prior to construction starting. Others may include timing constraints on all or some of the works. An understanding of all marine licence and section 36 consent conditions should be included when considering timescales for the project.

Post-determination approvals

Marine licences and section 36 consents for offshore renewable energy projects are likely to have several conditions requiring information to be provided for approval before construction can start e.g. approval of mitigation and monitoring plans. Stakeholders may be consulted as parts of MD-LOT's assessment of such information.

Any information provided to meet a licence or consent condition must:

• meet the requirements of the condition in full
• be within the parameters of all other licence or consent conditions
• be within the parameters of what has already been assessed in the applications and EIA Report

If the information submitted does not meet the above requirements, additional information or variation of the marine licence or section 36 consent may be required.  This subsequent approval may be assessed through the EIA multistage process.

Gap analysis of consultee comments on plans submitted  

Where mitigation and monitoring plans are required by a condition imposed on the licensee, MD-LOT will take steps to ensure that the requirements of the conditions are met. Where stakeholders have been consulted on mitigation and monitoring plans submitted, consultee comments on mitigation and monitoring plans will be passed to the licensee who will create a gap analysis, and provide information on their views or action taken in response to each of the consultee comments and terms of any condition.

MD-LOT reviews the gap analysis and identifies where issues have not been taken into account or have not been taken into account in a sufficiently complete way. The licensee/consent-holder will be advised to rectify any gaps prior to a decision on the approval of the information.