Offshore wind - strategic compensation policy: consultation

2. Application within Scottish Marine Planning and Consenting Processes

The Scottish Government is responsible for sectoral marine planning, as well as licensing and consenting of proposed offshore wind developments.

2.1 Relationship with Scottish Marine Planning

Scotland has a plan led approach to offshore wind development. The sectoral marine planning process develops specific plans for the development of offshore wind and marine renewables in Scotland’s seas while being consistent with the National Marine Plan (2015).

Scotland’s first NMP (adopted in 2015) sets out how Scottish Ministers intend marine space and resources to be used and managed out to 200nm. It supports a balance between economic development and environmental protection of Scotland’s seas, guiding marine decision-making to achieve sustainable management. All relevant authorities must make authorisation or enforcement decisions (including offshore wind consenting) in accordance with the NMP, unless relevant considerations indicate otherwise.

Scottish Ministers announced the intention to develop a new National Marine Plan (NMP2) in 2022 to support action on net zero and the twin crisis of climate change and nature loss. Work is ongoing to develop NMP2, to better reflect how the sea is currently being used, and to plan for its continued and sustainable future use.

The draft updated SMP-OWE which sets the strategic planning framework for the projects from the ScotWind and INTOG leasing rounds and an additional 1GW capacity for potential future Test and Demonstration projects is currently out for consultation until 22 August 2025.

Through the plan-level HRA process required to be undertaken for the draft updated SMP-OWE, if an AEOSI is concluded in the AA, as a result of the cumulative offshore wind development assessed within the plan, then subject to the outcomes of the first two Habitats Regulations derogations provisions (the Alternatives Test and Imperative Reasons of Overriding Public Interest (IROPI)), then at the discretion of Scottish Ministers, plan-level compensation would need to be identified for the plan to be adopted.

The implementation of this policy would support the identification of strategic compensation for the updated SMP-OWE.

2.2 Relationship with Scottish Consenting and Licensing for Offshore Wind

Scottish Ministers are currently the sole planning, licensing, consenting, and decommissioning authority for offshore wind projects in Scottish waters (inshore and offshore), with certain powers and functions either fully devolved or executively devolved.

The marine planning and licensing regimes for the Scottish inshore region (from 0-12nm) are within devolved legislative competence and operated under the Marine (Scotland) Act 2010. Marine planning and licensing in the Scottish offshore region (beyond 12nm) have been executively devolved under the Marine and Coastal Access Act 2009.

The section 36 consenting regime for electricity generating stations in Scottish waters under the Electricity Act 1989 and the decommissioning regime under the Energy Act 2004 are also executively devolved in the Scottish inshore and offshore regions. There are further devolved powers that allow for onshore planning permission to be granted where a section 36 consent is granted.

Consenting processes in the Scottish inshore region require the following key consents: 

• Marine licence: under the Marine (Scotland) Act 2010 and processed by the Scottish Government Marine Directorate (on behalf of Scottish Ministers).
• Consent for the generation of electricity: under section 36 of the Electricity Act 1989 for generating station above 1MW capacity.
• Planning permission: for onshore elements, deemed under section 36 consent, granted by Scottish Ministers or through a separate application under the Town and Country Planning (Scotland) Act 1997. 

The following key consents are required in the Scottish offshore region:

• Marine licences: regulated under the Marine and Coastal Access Act 2009 and processed by the Scottish Government Marine Directorate.
• Consent for the generation of electricity: the threshold increases, requiring consent for generating stations above 50MW by Scottish Ministers.
• Planning permission: remains the same as for inshore works.

It is the responsibility of Scottish Ministers to ensure the necessary compensation measures are secured (which under the current Habitats Regulations must be secured to ensure the overall coherence of the network). This is usually addressed via a condition attached to consents/marine licences to mandate the consent/marine licence holder (the offshore wind developer) to deliver the necessary compensatory measures.

The implementation of this policy could support streamlining of consenting and licensing of offshore wind.