2. Overview of Consents and Licences
2.1 Consenting and Licensing Requirements
Under the Marine Scotland Act 2010 the Scottish Ministers are responsible for marine licensing and enforcement in the Scottish inshore region (out to 12 nm). This includes the waters of every estuary, river or channel, so far as the tide flows at mean high water spring tide. Under the Marine and Coastal Access Act 2009 Scottish Ministers also have responsibility for licensing and enforcement in the Scottish offshore region (12-200 nm).
In addition, consent from Scottish Ministers under s.36 of the Electricity Act 1989 is also required for generating stations above 1 megawatt (MW) capacity in Scottish inshore region and above 50 MW in the Scottish offshore region. Further information on the consents and licenses required is provided throughout this chapter.
The following are the consents and approvals for which the Scottish Ministers are the competent or regulatory authority, namely:
- Marine Licences under Part 4 of the Marine (Scotland) Act 2010 and Part 4 of the Marine and Coastal Access Act 2009;
- Consent under S.36 of the Electricity Act 1989;
- EPS licenses under the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) and the OMRs 2017;
- Basking Shark Licences under the Wildlife and Countryside Act 1981 (as amended) and the Wildlife and Natural Environment (Scotland) Act 2011);
- Safety Zone applications (Energy Act 2004, as amended by the Scotland Act 2016); and
- Decommissioning programmes (Energy Act 2004, as amended by the Scotland Act 2016).
MS-LOT operates a one-stop-shop approach to consenting and licensing, meaning that applications for s.36 Consent and deemed planning permission, Marine Licences, EPS licences and basking shark licences are handled simultaneously where requested. This creates a simpler, more streamlined, process which aims to reduce the burden on applicants, stakeholders, and regulators alike.
2.3 Overview of Marine Licences
The Marine Licensing provisions of Part 4 of the Marine (Scotland) Act 2010 and Part 4 of the Marine and Coastal Access Act were introduced to streamline previous licensing and consenting mechanisms and play an important role in ensuring that the policies of marine plans are adhered to, by making licensing and enforcement decisions in line with the Marine Policy Statement and Scotland's National Marine Plan. The Marine Acts make it an offence to carry on, or cause or permit another person to carry on, a 'licensable marine activity' without a Marine Licence. It is a licensable marine activity' to do any of the following in Scottish Waters (from Mean High Water Springs out to 12 nm under the Marine (Scotland) Act 2010 and 12-200 nm through devolved powers in accordance with the Marine and Coastal Access Act 2009):
- Deposit any substance or object in the sea or on or under the seabed;
- Deposit any substance or object in the sea or on or under the seabed from a vehicle, vessel, aircraft or marine structure loaded with the substance or object in Scotland or in the Scottish Waters;
- Construct, alter or improve works on or over the sea or on or under the seabed from a vehicle, vessel, aircraft or marine structure;
- Remove substances or objects from the seabed;
- Dredging (including plough, agitation, side-casting and water injection dredging);
- Deposit and/or use explosives; and
- Incinerate substances or objects.
2.3.1 Pre-application Consultation
For activity in the Scottish Inshore Region, the Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013 ("PAC Regs"), lists 'prescribed classes' of activity to which the PAC Regs apply. There is no provision for pre-application consultation (PAC) in the Marine and Coastal Access Act 2009, so these requirements do not apply in respect of relevant applications in the Scottish Offshore Region.
Prospective applicants for a marine licence for an activity of a 'prescribed class' may notify the Scottish Ministers requiring a pre-application consultation statement from them. The Scottish Ministers must issue a PAC statement if one is requested.
Applicants for a 'prescribed class' of activity must notify the MCA, NLB, SNH, SEPA, and any delegate for a relevant marine region. A period of at least 12 weeks must elapse between such notice being given and an application being submitted. Applicants must hold at least one pre-application event at which the bodies notified (as above) and members of the public may provide comments to the applicant. Applicants must publish in a local newspaper a notice containing a description of the activity, detail where further information may be obtained, the date and place of the event, how and when comments should be submitted to the applicant. The notice must also include a statement that the PAC comments are not representations to the Scottish Ministers and that there will be an opportunity to make such representations when an application is made. A PAC report, as per the schedule to the PAC Regs should be submitted alongside the marine licence application. The PAC event must be held no earlier than six weeks after the later of the date on which notification of such event is given and the date of notification that an application for a marine licence is to be submitted is given. PAC events may not be needed if a suitable event has been held in the year before the application is made. Guidance on Marine Licensable Activities subject to Pre-Application Consultation is available online.
2.3.2 Additional Marine Licensing requirements
It is a licensable marine activity to remove small quantities of sediment from the seabed over 1 m³ as part of scientific and/or investigative surveys. Liaison with MS-LOT is therefore recommended to determine the licensing requirements of any pre-construction activities such as seabed surveys.
Having received an application, MS-LOT (on behalf of Scottish Ministers) will advise that notice of the application should be published. See section 4.10 for further details. MS-LOT determines applications for marine licences, on behalf of Scottish Ministers, having regard to the need to protect the environment, protect human health and prevent interference with legitimate use of the sea. In determining such applications to construct, alter or improve works, MS-LOT must have regard (among other things) to the effects of any use intended to be made of the works.
Applications for marine licences should contain sufficient information to enable determination. It is the applicant's responsibility to accurately record deposits in the marine licence application form. Where, in MS-LOT's view, insufficient information has been submitted, MS-LOT may refuse to proceed with an application until the applicant has conducted further investigations and submitted further information, as is reasonable, to enable determination of an application. In determining all licence applications, MS-LOT will consult any relevant local planning authority, SNH, SEPA, Historic Environment Scotland, the Commissioners of Northern Lighthouses, the MCA, any relevant authority and any non-statutory, consultees.
Subject to regulation 8 of The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (as amended) the Scottish Ministers must not grant a regulatory approval (a marine licence) for an EIA project (as defined in the Marine works (EIA) Regs) unless an EIA has been carried out in respect of that project and in carrying out such assessment the Scottish Ministers must take the environmental information into account.
MS-LOT, having considered the application must either grant the licence unconditionally, grant the licence subject to appropriate considerations or refuse the application. Section 29 ("s.29") of the Marine (Scotland) Act 2010 and Section 71 ("s.71") of the Marine and Coastal Access Act 2009 provide for such conditions as may be attached to a marine licence.
Applications for Marine Licences may not be processed unless accompanied by payment of the appropriate fee, as laid down in the Marine Licensing (Fees) (Scotland) Regulations 2011 (as amended) (the "Marine Licensing fees Regs"). Where the activity forms part of a larger project, regulation 3A.-(2) of the Marine Licensing Fees Regs states that the fee is to be determined based on the likely cost of carrying out that project. Further information on application fees can be found in section 4.9. Application forms and further marine licensing guidance can be found on the Marine Scotland Website.
Part 7 of the Marine (Scotland) Act 2010 also makes specific provision for Marine Enforcement Officers. These officers have specific powers to enforce the marine licensing regime, and all issues relating to marine protection and nature conservation legislation.
2.4 Section 36 Consent
Any proposal to construct, extend or operate a generating station situated in the:
- Scottish territorial sea (out to 12 nm from the shore), with a generation capacity in excess of 1 MW; or
- Scottish Offshore Region (12 to 200 nm), with a generating station in excess of 50 MW
will require consent under s.36 of the Electricity Act 1989.
Under the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 Scottish Ministers must not grant an Electricity Act consent for EIA development; or direct that planning permission is deemed to be granted under section 57(2) or (2ZA) of the Town and Country Planning Scotland Act 1997 in respect of an EIA development, unless an environmental impact assessment has been carried out in respect of that development and in coming to a decision the Scottish Ministers must take the environmental information into account and come to a reasoned conclusion (which must be up to date) on the significant effects of the development on the environment.
Developers have a duty under Schedule 9 of the Electricity Act 1989 to have regard to the preservation of amenity and fisheries. This requires the developer, when formulating proposals relating to the construction and operation of a generating station, to take account of the effects the proposal would have on the natural beauty of the countryside, on any flora, fauna, and geological and physiological features of special interest, and sites, buildings and objects of architectural, historic or archaeological interest. It is also required that the applicant take reasonable actions to mitigate the effects of the proposal on amenity and that steps are taken to avoid, as far as possible, causing injury to fisheries or the stock of fish in any waters.
The s.36 application should cover the generating station and any inter-array cabling, whilst any offshore platform or cabling to the platform or to shore should be considered through a marine licence application. This will allow an easier transfer process of the transmission assets to the offshore transmission operator at the relevant time.
The Energy Act 2004 introduced two additional sections into s.36 of the Electricity Act relating to navigation. In accordance with Section 36A, Scottish Ministers have the power to make a declaration, on application by a developer, which extinguishes public rights of navigation which pass through the place where the generating station will be established; or suspending rights of navigation for a specified period of time. The declaration can only be made at the same time as the s.36 consent being granted and extends only to the actual generating stations, not the wider development area, in territorial waters.
Section 36B places a duty on Scottish Ministers that they may not grant consent for a generating station where the generating station, whether in the Scottish territorial sea or the Renewable Energy Zone, would interfere with recognised sea lanes essential to international navigation. The Scottish Ministers are also under a duty, in determining whether to grant consent to a particular application, to have regard to the extent and nature of any obstruction of or danger to navigation which is likely to be caused by or result from the generating station.
In exercising their duties, both in relation to interference with recognised sea lanes essential to navigation and obstruction of or danger to navigation, Scottish Ministers must take into account the cumulative impact of the generating station for which s.36 consent is being sought, together with those for which consents have already been granted and those for which it appears likely that consents will be granted.
2.4.1 Deemed Planning Permission
Planning permission will in most cases be required for the land based components of marine based electricity generating stations. In these cases a statutory provision in the Growth and Infrastructure Act 2013, amending s57 of the Town and Country Planning (Scotland) Act 1997, allows Scottish Ministers to direct that planning permission is deemed to be granted for the ancillary onshore components and related onshore infrastructure for a marine based electricity generating station consented under s.36.
Planning Authorities are statutory consultees for s.36 applications and are therefore consulted on any deemed planning components of a s.36 application. Where a s.36 application contains an onshore element of the generating station, then a Planning Authority objection will trigger an automatic PLI which will be confined to the onshore element. Paragraph 7a(7) of Schedule 8 to the Electricity Act 1989 gives the Scottish Ministers powers of direction in relation to the scope of any PLI.
Developers can still choose to apply for a s.36 consent from the Scottish Ministers, and planning consent for onshore components from the relevant Planning Authority, separately. The Scottish Government considers that, in most cases, however, a single consenting process will be more efficient and effective than applying for a separate consent and planning permission. In either event, developers should seek early pre-application consultation with the Planning Authority. Good communication and engagement between MS, developers and the Planning Authority on s.36 applications is important. Developers need to make it clear to MS-LOT at the earliest opportunity whether or not they are applying for deemed planning permission.
2.5 Overview of Environmental Impact Assessment
The main aim of the Environmental Impact Assessment Directive ("the EIA Directive") (2011/92/EU) as amended by (2014/52/EU) is to ensure that the authority granting consent (the 'competent authority' (Scottish Ministers in this context) for a particular project makes its decision in full knowledge of any likely significant effects ("LSE") on the environment. The Directive therefore sets out a procedure that must be followed for certain types of project before they can be given 'consent'. This procedure is a means of drawing together, in a systematic way, an assessment of a project's likely significant environmental effects. This helps to ensure that the importance of the predicted effects, and the scope for reducing any adverse effects, are properly understood by the public and Scottish Ministers before a decision is made.
Any EIA must take account of the OSPAR List of threatened and/or declining species and habitats.
The EIA Directive has been transposed into Scottish and UK legislation. The following regulations may apply to offshore renewable energy projects:
The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017 as amended by The Environmental Impact Assessment (Miscellaneous Amendments) (Scotland) Regulations 2017 apply to all applications for s.36 consent in Scottish waters out to 200 nm.
The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 (as amended by The Environmental Impact Assessment (Miscellaneous Amendments) (Scotland) Regulations 2017 apply to applications that require an EIA (as defined in schedule 2 of the 2017 Marine Works Regulations) for a marine licence from 0-12 nm.
The Marine Works (Environmental Impact Assessment) Regulations 2007 as amended by The Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2011, The Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2015 and The Marine Works (Environmental Impact Assessment) (Amendment) Regulations 2017 apply to applications that require an EIA, for a marine licence from 12-200 nm.
In this Guidance, the various Regulations specifying the requirement for an EIA will be referred to collectively as the EIA Regulations. In circumstances where more than one set of EIA regulations apply to an offshore renewable energy project the most stringent requirements set out in the various regulations should be adhered to.
EIA includes the following broad stages:
- Screening - determines whether an EIA is required.
- Scoping - identifies the issues which must be addressed in the EIA Report.
- EIA Report - assesses the likely significant effects of a project
- Consultation/public participation by Scottish Ministers - to gather views from stakeholders on the likely effects of the project.
- Determination – made by the Scottish Ministers having considered the environmental information, mitigation and consultation responses.
- Multi-stage consent / regulatory approval – will apply following consent.
Benefits of EIA
For applicants, EIA can help to identify the likely significant environmental effects of a particular development at an early stage. This can produce improvements in the planning and design of the development and in decision making by both the developer and Scottish Ministers. In addition, applicants may find EIA a useful tool for considering alternative approaches to a development. This can result in a final proposal that is more environmentally acceptable, and can form the basis for a more robust application for consent. The presentation of environmental information in a more systematic way may also simplify Scottish Ministers' task of appraising the application and drawing up appropriate conditions, lead to more meaningful consultations, and can help enable swifter decisions to be reached.
2.6 Overview of Habitats Regulations Appraisal
HRA is the process through which it is determined whether a plan or project will have an adverse effect on the integrity of an SAC or SPA. Scottish Ministers must be satisfied that there will be no adverse effect before issuing a marine licence or s.36 consent. This consists of a three stage process which is described in section 2.6.1. The sites to be considered in this process are listed in section 2.6.2, and the relationship between HRA and EIA is discussed in section 2.6.3.
2.6.1 The 3 Steps of HRA
The HRA process can be summarised as three steps as illustrated in Figure 1 with the decision-making process illustrated in Figure 3, these are:
- Step 1: Is the proposal directly connected with or necessary for site management for nature conservation?
- Step 2: Is the proposal likely to have a significant effect on the site either alone or in-combination with other plans or projects? (see section 3.3.5)
- Step 3: Can it be ascertained that the proposal will not adversely affect the integrity of the site either alone or in-combination with other plans or projects (the AA). (see section 3.3.5)
If the HRA screening process concludes that the potential for LSE cannot be excluded then its scope should include the collation, and presentation, of information to enable an AA to be undertaken. The AA that is undertaken by Scottish Ministers must ascertain whether the proposed project will or will not adversely affect the integrity of the European site(s) concerned. In cases where there is doubt about the presence or absence of adverse effects on integrity, the proposal may not proceed unless there are no alternative solutions and there are imperative reasons of over-riding public interest (IROPI).
The HRA is an integral document to the consent and licence applications and should be submitted as part of the application package of documents required under the EIA process.
The SNH website has useful information on general HRA requirements as well as specific guidance on Habitats Regulations Appraisal (HRA) on the Firth of Forth and Habitats Regulations Appraisal (HRA) on the Moray Firth.
2.6.2 Sites to be considered
Under the Habitats Regulations the follow sites types have full legal protection:
- SAC - a site formally designated by a member state
- SPA - a site formally classified by a member state
- Sites of Community Importance (SCIs) – a site adopted by the European Commission but not formally designated.
- Candidate SACs (cSACs) – a site proposed by a member state but not yet adopted by European Commission
Under Scottish Government policy Ramsar sites are also protected under the same statutory regimes. There is no need to consider Ramsar sites separately if they overlap with SACs and/or SPAs.
Under Scottish Planning Policy the follow site types should be treated as if fully designated:
- Proposed Special Protection Area (pSPA) and proposed SACs (pSACs) – Sites which have been approved by Scottish ministers for public consultation.
The following have no legal status but should be given appropriate consideration:
Draft SPAs (dSPAs) and draft SACs (dSACs) – Sites that the statutory nature conservation advisor has provided advice that the area is suitable for designation.
2.6.3 Relationship between HRA and EIA
HRA is undertaken by the developer and should provide Scottish Ministers with the information required for them to either complete an AA or to rule out the potential for LSE on the qualifying interests of European sites. It is a separate requirement from EIA, due to the specific assessment and legislative requirements for projects that may affect European sites, although both often need to be informed by the same information. It is also necessary for projects which do not require EIA to undergo HRA if there is a LSE. In these cases, full presentation of a HRA assessment and evidence will be required outwith the EIA process. Additionally, the terms 'significant', 'compensation' and 'mitigation' have different definitions/implications under the EIA and HRA legislation and these need to be clearly understood at the outset.
Where an appropriate assessment is required, the competent authority must consult SNH. However if the information on HRA is included in the EIA scoping report MS-LOT will consult with other relevant consultees to determine what information will be required from the applicant, including methods of data collection and the level of detail that will be required in the assessment. As with EIA, applicants should be aware of timescales for obtaining the necessary data.
In summary, the HRA process relates specifically to the consideration of habitats or species under the EU Habitats and Wild Birds Directives and associated transposing regulations. The process considers the potential effects of the development on internationally important habitats and/or species for which the sites are designated. The assessment includes consideration of direct and indirect effects on these interests and must also consider cumulative and in-combination effects from other proposed plans or projects.
2.7 Overview of European Protected Species
European Protected Species (EPS) are animals and plants (species listed in Annex IV of the Habitats Directive) that are afforded protection under The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) and the OMRS 2017. All cetacean species (whales, dolphins and porpoise) are European Protected Species.
This makes it an offence to:
- deliberately capture, injure or kill any European Protected Species (EPS)
- to deliberately disturb them
- to damage or destroy a breeding site or resting place.
If any activity is likely to cause disturbance or injury to a European Protected Species a licence is required to undertake the activity legally.
A licence may be granted to undertake such activities if certain strict criteria are met:
- there is a licensable purpose
- there are no satisfactory alternatives
- the actions authorised will not be detrimental to the maintenance of the population of the species concerned at favourable conservation status in their natural range
2.8 Overview of Marine Protected Areas
A network of Nature Conservation MPAs have been designated in Scottish waters under the Marine (Scotland) Act 2010 or the Marine and Coastal Access Act 2009 since 2014, protecting habitats and species such as maerl beds, flame shell beds, and common skate. Eight Historic MPAs have been designated to preserve sites of historical importance around the Scottish coast. One Demonstration and Research MPA has been designated. at Fair Isle.
Under section 83 of the Marine (Scotland) Act 2010 / section 126 of the Marine and Coastal Access Act 2009 Public Authorities (including the Scottish Ministers) are required to consider whether a project is capable of affecting (other than insignificantly) a protected feature in an MPA. The Public Authority must not grant authorisation to the activity unless satisfied that there is no significant risk of the activity hindering the achievement of the objectives of the site. A similar provision requires consideration of the stated purpose of a demonstration and research MPA, or the stated preservation objective of a Historic MPA.
It is Scottish Government policy that proposed MPAs (pMPAs), which are sites approved by Scottish Ministers for public consultation but not yet designated, should be treated for assessment purposes as if they were designated.
2.9 Overview of basking shark licences
Basking sharks are protected under the Schedule 5 of the Wildlife and Countryside Act 1981 (as amended) and the Wildlife and Natural Environment (Scotland) Act 2011 from intentional or reckless disturbance or harassment. The following licence may be required from Scottish Ministers to enable some of the works to commence under a Marine Licence and/or a s.36 consent:
- Basking Shark Licence (Wildlife and Countryside Act 1981 (as amended) and the Wildlife and Natural Environment (Scotland) Act 2011)
2.10 Other Licences and Approvals
2.10.1 Seabed Lease
Applicants must obtain a lease from Crown Estate Scotland (or the holder of the rights) for the use of all sea areas in Scottish inshore and offshore waters. It is the sole responsibility of the developer to ensure that all necessary leases are acquired.
An Agreement for Lease granted by Crown Estate Scotland generally grants a developer an option over an area of seabed. Exercise of the option by the developer will be conditional on it satisfying certain conditions. If the conditions are satisfied and the developer exercises the option, The Crown Estate Scotland will be obliged to grant a lease of the seabed to the developer. The conditions to be satisfied before the developer may exercise the option will include the obtaining by the developer of all statutory consents for the proposed development. If the developer is unable to satisfy all the conditions within a certain time provided for in the Agreement for Lease, the option will lapse. During the option period the developer will be permitted to undertake surveys and deploy anemometry equipment. However, the developer is not permitted to commence construction of its development until and unless all statutory consents and a lease are granted.
2.10.2 Local Acts and Local Revision Orders
Local Acts and Orders can apply if the proposed project is within a designated area, e.g., a Statutory Harbour Authority area. These areas are under the control of Local Planning Authorities or Harbour Authorities and proposed projects require Local Development Consents or Work Orders to be granted. Where applications relate to such areas, developers will be notified by MS-LOT at an early stage and these approvals will be required in addition to s.36 consent and/or marine licence. In such cases, the power to permit the work rests with the relevant Local Planning Authority or Harbour Authority. It is the responsibility of the developer to obtain such permits or licences. Developers should ensure that early consultation is undertaken with the relevant authorities and that the application is made in good time.
2.10.3 Navigational Safety and Aids to Navigation
The UK Government has a responsibility to ensure navigational safety measures are implemented in order to honour its commitments under Article 60(7) of the United Nations Convention on the Law of the Sea relating to provisions for Artificial islands, installations and structures in the exclusive economic zone'. This is addressed in a number of specific Acts.
If marks or lights are required in respect of marine developments, a project specific assessment must be made with Statutory Sanction applied for from the Northern Lighthouse Board.
The Northern Lighthouse Board is also responsible for the inspection and audit of all Aids to Navigation within its area of jurisdiction, including Local Lighthouse Authority, offshore installations and aquaculture aids. Once Aids to Navigation are established as part of the design and build of marine developments, any alteration or removal within Scottish Waters requires the prior Statutory Sanction of the Northern Lighthouse Board.
2.10.4 Safety Zone Applications
Section 62 of the Scotland Act 2016 amends Section 95 of the Energy Act 2004, essentially making Scottish Ministers the "appropriate Minister" for safety zones around renewable energy installations wholly in Scottish waters or an area of waters in a Scottish part of the Renewable Energy Zone, and which are not being extended or proposed to be extended out-with those areas. The power of the appropriate Minister to issue a safety zone notice shall be exercisable on an application made to him/her for that purpose by any person, or where no such application has been made, on his/her own initiative after consultation with the Maritime Coastguard Agency.
Safety zones can be established for any phase of an offshore renewable energy project but are normally applied for the construction or aspects of operations and maintenance phases. The request for safety zones can be dealt with in one application with different safety zone requirements for the different phases.
It should be noted that for applications made under s.36 where there is an intention to apply for a safety zone as part of construction or aspects of the operation and maintenance phases this should have been detailed in the EIA Report. Failure to do so may mean that it is unlikely that safety zones could be approved.
Whilst standard safety zones of 500 metres can be applied for (max under international law), other constraints on navigable routes or access for other users may restrict the size possible and these will be dealt with on a case by case basis.
It is expected that in the request for safety zones there will be a clear plan of rolling safety zones which allows safe working conditions whilst minimising impacts on other stakeholders.
The safety zone plan submitted for consultation through public advertisement and an eight week stakeholder consultation should contain a clear communication strategy on how the details of the zones will be communicated and to whom. Details of contacts (FLO Fisheries Liaison Officers) and very high frequency ("VHF") Channel to be used should be given along with contacts in MCA and local harbours. The developer will be responsible for providing guard ships to encourage compliance with safety zones.
2.10.5 Statutory Decommissioning Scheme
Section 62 of the Scotland Act 2016 transfers to Scottish Ministers powers under the Energy Act Part II Chapter 2, to require developers of offshore renewable energy projects in Scottish Waters and the Scottish part of a Renewable Energy Zone, to prepare a decommissioning programme. These powers constitute the regulatory functions of decommissioning including: powers for Scottish Ministers to approve such a programme; to require financial security for a programme to be put in place by responsible persons; and, should that responsible party default, to ensure that the decommissioning programme is carried out. Scottish Ministers will also have the power to determine their own approach to decommissioning including the form, timing and size of financial securities.
Under the statutory scheme, the appropriate Minister may require those persons with an interest in such installations to produce a fully costed Decommissioning Programme detailing how they intend to remove the installation when it comes to the end of its useful life and how the costs of doing so will be funded.
Marine Scotland will be producing guidance for the decommissioning of offshore renewable energy installations. However, until that guidance is finalised developers should ensure that they have fully read and followed the current UK Government guidance on decommissioning offshore renewable energy installations before approaching MS-LOT to discuss their proposals in greater detail.
The requirement to prepare a decommissioning programme under Section 105 of the Energy Act 2004 (as amended) ("s.105") applies to offshore renewable energy projects which generate electricity but does not for example apply to developments which are connected by a permanent structure to land. The requirement does extend beyond commercial developments and applies where investigations, trials or feasibility studies are being carried out with a view to ascertaining whether the generation of electricity is practicable. It should be noted that where an offshore transmission operator ("OFTO") is to be appointed a separate s.105 notice will be issued for the offshore transmission works.
The regulator would normally issue a s.105 notice to a developer after a consent or marine licence has been issued. The developer must then submit a plan for the decommissioning works accompanied by details of costs and proposed financial securities. The developer will consult on the plan with an approved set of stakeholders and make the plan available to the public on both developer's and MS-LOT websites. MS-LOT will consult on the plan, proposed costs and financial securities before seeking ministerial approval on the scheme. Whether or not security is required will be a ministerial decision based on the perception of risk to Scottish Ministers of default by the developer. It should be noted that statutory provisions make it an offence not to decommission in accordance with a notice issued by Scottish Ministers and they have the power to take remedial action and recover any expenditure where developers fail to do so.
The timescales for the consenting and licensing processes are set out in figure 1 below.
Figure 1 – Consenting & Licensing Process Timeline
Scottish Ministers have an objective to, where possible, determine s.36 applications within nine months of start of consultation where there is no PLI. It is however worth noting that the nine month determination period is dependent on the submission of a complete, fit for purpose non-contentious application that fully addresses all issues raised by Scottish Ministers and consultees during the pre-application period including the scoping process. Early engagement is therefore key.
Marine licence applications that have been submitted alongside an application for a s.36 will be processed in parallel with this process and issued (where appropriate) at the time of the decision on the s.36 consent.
On other marine licence applications, following receipt of all required information, payment and confirmation that the relevant public notices have been approved and publicised, if there are no objections or complex issues raised during the consultation process these will be processed within 14 weeks. For more complex, larger or potentially contentious projects applicants should allow longer for an application to be processed.
2.12 Protocol Agreements
MS-LOT is content to enter into protocol agreements with developers and other stakeholders. The aim of protocol agreements is to set out and agree the proposed timescales and key stages for the pre-application, application and the post-consent process for individual developments. This will allow MS-LOT and stakeholders to forecast forthcoming workloads and for developers to be clear about their timescales. Outline protocol agreements for the pre-application and application stages and the post-consent stage are attached at Annex C and D respectively.
2.13 Gap Analysis
Throughout the consenting process and into the post-consent period it is important to ensure that issues specified in the Scoping Opinion (see section 3.3.2) adopted by Scottish Ministers, and comments raised subsequently by consultees, are adequately addressed and taken to completion through an auditable process. MS-LOT requires that this is achieved through gap analyses.
The gap analysis methods will be applied at three stages in the licensing process.
a) The developer's Scoping Report results in the adoption of a Scoping Opinion by Scottish Ministers. This Opinion will specify a range of issues that are required to be addressed in the developer's EIA Report. As part of the package of documents supplied by the developer at gate-check in support of their application, the developer will provide a log of the issues raised in the Scoping Opinion, and of the actions taken in respect of each issue, together with a reference to the relevant section of the EIA Report. MS-LOT will review the gap analysis and identify where issues have not been addressed or have not been addressed in a sufficiently complete way. Developers will be advised to rectify these gaps prior to submission of the final EIA Report.
b) The final EIA Report and other elements of the application package will be subject to broad consultation. The consultee comments will be passed to the developer who will create a second gap analysis, and provide information on their views or action taken in response to each of the consultee comments, together with evidence of satisfactory resolution. MS-LOT will review this second gap analysis and identify where issues have not been addressed or have not been addressed in a sufficiently complete way. Developers will be advised to rectify these gaps prior to determination of the application.
c) In the post-consent period, a third gap analysis will be prepared by the developer reflecting the comments raised by consultees on the various Plans prepared by the developer as required by the consent/licence conditions. Again, MS-LOT will review this and identify gaps where issues have not been addressed or have not been addressed in a sufficiently complete way. Developers will be advised to rectify these gaps before Plans can be approved.