9 Reducing the Burden: Licensing and Enforcement
9.1 Objective
To reduce the burden on developers and regulatory bodies by streamlining and modernising the marine licensing and consenting system to deliver quicker and clearer decisions. This will be achieved by delivering a more efficient licensing framework which is more tailored to the needs of prospective developers.
9.2 Description
The aim of licensing is to control and regulate development and use of the sea to prevent or minimise adverse effects on key features of the marine environment. These features include:
- Water quality i.e. keeping water chemistry, physics and biology within acceptable limits
- Physical features (including historic assets) ensuring they remain substantially undamaged
- Marine life, providing a high level of protection for some species for example seals, and management of other species, for example through fishing quotas
- Visual amenity/seascape, ensuring Scotland's iconic landscape is maintained
- Sea lanes, keeping sea channels navigable; and
- Multiple uses of areas, use of conditions, including temporal restrictions, can enable multiple use rather than single use
Under current marine licensing arrangements, separate licences are required for a range of different activities and developments. These licenses are currently granted by a number of organisations including FRS, SEPA and Scottish Ministers, and are often subject to varying levels of consultation and determined over different timescales. Consequently these licensing agreements are often costly and time consuming for developers and in some cases can hinder development. They are also hard to manage and monitor, making it difficult to deliver and enforce appropriate mitigation.
Proposals in Scottish Marine Bill aim to improve this situation through streamlining the existing licensing process. Two different options for streamlining have been identified:
- Impact led approach
- Activity led approach
9.2.1 Impact Led Approach
This would involve the consolidation of all licences for certain types of impact into one environmental/ecological impact licence where appropriate. This approach would pull together FEPA (Food and Environmental Protection Act 1985), CPA (Coastal Protection Act 1949) and CAR (Controlled Activities Regulations 2005) consents for discharges and aggregate dredging and wildlife licences. Development consents for fish farms would remain with local authorities and for marine renewables with Scottish Ministers.
However, in bringing licenses together in this way, it would be necessary to ensure consistency of regulation where consent is also required for land based activities. The EIA process would also need to be integrated into this approach. Ultimately this approach would reduce the number of licences required for an individual development to two, an environmental/ecological impact licence and a development consent.
9.2.2 Activity Led Approach
This approach would involve the integration of all licences that a certain activity has to apply for into one licence, creating a single activity licence.
An example of the current complexities surrounding the existing licensing process is provided below with respect to the deployment of marine renewable within territorial waters. For any marine energy installation greater than 1 MW a development consent/licence must be obtained from the Scottish Government under Section 36 of the Electricity Act 1989. Licences must also be obtained, for all marine developments, in respect of their impact/effect on the sea bed, under section 5 of Food and Environmental Protection Act ( FEPA) and section 34 of the Coastal Protection Act ( CPA) to ensure that marine works will not be detrimental to navigation.
In Scotland, both FEPA and CPA licences are currently determined by, and obtained from the Scottish Government, and can be applied for alongside the application to the Energy Consents Unit for consent under the Electricity Act.
Consent for onshore works must be obtained under the Town and Country Planning Act 1990 either from the Scottish Government, via deemed planning permission under the Electricity Act 1989, or from the relevant local planning authority ( LPA).
The environmental effects of all proposals for consent under Section 36 of the Electricity Act must be assessed under the Electricity Works (Environmental Impact Assessment) Regulations 2000, and the required and agreed level of information presented in the form of an Environmental Statement ( ES). LPAs can also request an ES for non-section 36 proposals. When considering Section 36 consent applications, Scottish Ministers should also consider the effects of a marine development on European Sites of Nature Conservation Importance (Natura 2000 Sites) in territorial waters under the Habitats Directive and Conservation (Natural Habitats, &c.) Regulations 1994.
The benefits of the activity led approach would be to reduce the number of licences required to the number of activities which would probably be a minimum of three (aquaculture, renewables and others). This would probably have a positive effect in terms of timescales relating to licence awards but could reduce local accountability for certain developments e.g. fish farms if local authorities are removed from the consenting process.
9.2.3 Delivery of Licences
As part of their marine management role, it is proposed that Marine Scotland (see Chapter 12) should have general responsibility for any new marine licensing system. This may be on a 'full' responsibility basis which would help integrate licensing procedures but raises issues of consistency with other regulatory regimes and the coordination and availability of expertise and resource between Marine Scotland and existing regulators.
Alternatively, Marine Scotland could act as an access point to the licensing framework whilst the existing organisations maintain their individual regulatory roles.
9.2.4 Consultation
The current licensing regime is subject to both formal (statutory) and informal consultation. The specific consultation requirements vary from licence to licence and often from development to development. To try and reduce the inconsistencies associated with the current licensing process, the Scottish Government is proposing to create a duty to produce of a list of consultees for the new licensing system. Additionally, Scottish Ministers are considering ways to improve local involvement in licensing decisions and new mechanisms for increasing local accountability for decision making in local areas.
9.3 Environmental Consequences
Other than reducing the regulatory burden experienced by developers and regulatory authorities due to the requirement to obtain a number of different licences for the same project and in some cases similar impacts, from different organisations, the streamlining of the licensing process is likely to have a number of implications on the future development and protection of the marine environment. These are summarised below:
- The streamlining of licences would create a more integrated and coordinated approach to licensing. This would enable a more holistic assessment of the potential impacts of developments/activities
- The adoption of a more holistic approach to the assessment of the impacts of marine developments/activities would enable other possible impacts that were not previously identified by more focused licensing producers to be identified and assessed accordingly
- The conditions and mitigation measures attached to licences would also become more streamlined. This would improve the overall ability to monitor and enforce those conditions
- Reductions in the number of licences required would also enable resources within licensing organisations/statutory bodies to be more focused on the development, implementation and enforcement of appropriate mitigation rather than the licensing procedures
- The delivery of licences by one organisation, Marine Scotland, would improve the consistency of advice and would reduce duplication of impact assessments
- Possible reduced integration and consistency with other regulatory regimes e.g. land based activities due to transfer of licensing responsibilities to Marine Scotland could lead to the overlapping of impact assessments/omission of impact assessments where developments/ activities have both marine and land based components
- The provision of one point of contact for licences would enable developers to track licence applications more easily and to have a greater level of consultation with key decision makers
- The delivery of fewer licences would enable surveys/data collation and impact assessments to focus on the key potential environmental effects rather than a full suite of possible effects
- More integrated and coordinated approach to licensing would enable decision makers e.g. Marine Scotland to have a better strategic view of potential cumulative impacts of different developments/activities
- New mechanisms for local involvement in licensing decisions and increased local accountability would help to ensure that the developments/activities are suited to the correct location and will bring maximum benefits to local areas whilst minimising adverse effects on the environment
- A lack of appropriate skills/resources within Marine Scotland could have negative effects on the environment due to a lack of appropriate experience/knowledge to accurately evaluate licence applications and evaluate possible impacts on the environment
9.4 Assessment Results
The assessment concludes that the streamlining of licensing would in general have a positive effect on the environment, mainly as a result of improvements in the consistency of advice and decision making, adoption of a more holistic and integrated approach to assessing impacts and improved monitoring and enforcement. Reducing the burden of the current licensing regime on developers and regulatory bodies would also have environmental benefits, in particular through promoting renewables developments.
However, the assessment did identify one potential negative effect. This relates to dredging and is a result of proposals to extend the current licensing regime to cover all new types of dredging including capital and maintenance dredging. These practices are not currently subject to any licensing control, although capital dredging is subject to EIA. Consequently this would increase the licensing obligations on dredging operators. However, with appropriate guidance and advice, plus integration into a wider licensing framework the overall impacts should be relatively minor.
As with the proposals for marine planning there are areas within the licensing and enforcement policy area where further clarity is required regarding the actual mechanisms for implementation of a streamlining licensing framework. In theory, fewer licences and clearer delivery of those licences through one organisation or a fronting organisation would help improve integration and coordination of marine based licensing with licensing for land based activities. However, there is a lack a clarity regarding licensing across the marine/land interface.
The licensing and enforcement policy area has identified two possible options for the delivery of a streamlined licensing framework. The first involves Marine Scotland being wholly responsible for the regulation of marine consents. This approach would provide a one stop shop for developers in terms of the marine environment but would exclude land based operations.
The second option would be for Marine Scotland to act as a 'front door or gateway' to the main licensing framework. In this role Marine Scotland would be as the main contact point or liaison for all license applications, whilst the assessment of licenses and the regulation impacts on the environment would remain with the current regulatory body e.g.SEPA. In this case SEPA would be able to continue to regulate impacts in the water environment under CAR as at present and enable the integration of a marine licensing framework with existing frameworks developed under the Water Framework Directive ( WFD).
In terms of water quality this approach would appear to be very positive and would bring consistency between marine and land based activities. However, in terms of other impacts on the environment it is not clear where the boundaries would lie between marine and land based activities and licenses.
One example where further clarity is required in terms of the marine/land interface includes the regulation of impacts of marine developments on landscapes and seascapes. Currently these are regulated by local authorities with advice from SNH. It is assumed that where Marine Scotland would be wholly responsible for the regulation of marine consents, the Local Authority would retain full responsibility for regulating impacts of marine developments on landscape and seascapes. However, in terms of the second option it is not clear where Marine Scotland's role as 'front door or gateway' would extend to in terms of a wider licensing framework. This could lead to confusion where developers have to go through Marine Scotland to receive consents from local authorities, particularly where there are no defined limits on the landward extent of an application.
The consultation document is not explicit as to whether regulatory boundaries between the marine and terrestrial environment would be established through the marine planning process and its integration with the existing ICZM. Further clarity on this matter is necessary to fully determine the likely success of a streamlined licensing framework, in particular as it affects the regulation of a number of environmental impacts and range of marine activities not least marine renewables, the delivery of which depends on the ability to develop appropriate coastal infrastructure.
Table 9.1: Reducing the Burden: Licensing and Enforcement Assessment Results
