Appendix 4     Policy and Legislation

4.1                  Introduction

  1. This appendix provides a summary of the policy and legislative context for the Proposed Development, specifically in relation to:
  • international obligations and policy, including European legislation, relating to climate change, reducing greenhouse gas (GHG) emissions and the role of renewable energy;
  • UK and Scottish climate change and energy legislation and policy;
  • Scottish offshore wind consenting legislation, including the consent applications required for the construction, operation and maintenance, and decommissioning of the Proposed Development; and
  • other legislation that may be relevant to the Proposed Development.
    1. The consents required are dictated by the location, nature and scale of the Proposed Development and the consenting requirements are explained with reference to different legislative requirements within Scottish inshore waters (within 12 nautical miles (nm)) and within Scottish offshore waters (12 – 200 nm). Section 2.3  Open ▸ describes the consents and legislation relevant to the Proposed Development.
    2. In order to combat climate change through decarbonisation of the energy system, Scotland and the UK, require new renewable sources of energy, which will ensure that a secure supply of electricity is available to meet increased future demand (Scottish Government, 2017). The provision of new renewable energy capacity will help the Scottish Government meet legally binding national and international commitments on climate change.
    3. Offshore wind generation has been identified at national level as being capable of providing a significant contribution towards such commitments (HM Government, 2020b).
  1.                   Climate Change Policy and the Need for the Development
    1.              International Commitments
      1. The UK is a signatory to the Kyoto Protocol which commits state parties to reduce GHG emissions by setting internationally binding emission reduction targets. The protocol came into effect in 2005 and its commitments were transposed into UK law by the Climate Change Act 2008, which requires the net UK carbon account for the year 2050 to be 80% lower than the 1990 baseline.
      2. In December 2015, 195 countries adopted the first-ever universal, legally binding global climate deal at the Paris climate conference (COP21). The Paris Agreement (2016) sets out a global action plan towards climate neutrality with the aims of stopping the increase in global average temperature to below 2 °C above pre-industrial levels, and to pursue efforts to limit global warming to 1.5 °C.
    2.              European Parliament and Council Directives
      1.         Brexit
      1. On 31 January 2020, the UK formally left the European Union (EU) (hereafter referred to as Brexit) after triggering article 50 of the Lisbon Treaty. The UK then entered a transition period which ran until 31 December 2020. The transition period allowed the UK and EU to determine their future relationship. During the transition period, all EU policies and legislation were required to be implemented by the UK.
      2. The "level playing field" provisions in the UK/EU Trade and Cooperation Agreement (TCA) cover environment aspects such as industrial emissions, air, nature and biodiversity, waste management, the aquatic and marine environments, chemicals and the management of impacts on the environment from agricultural or food production.
      3. The TCA requires "non regression" in the level of environmental protection by the UK from the end of the transition period on environmental protection that were in place at 31 December 2020. Further, environmental targets through EU environment law will continue to be bound to the UK even where the attainment of the target is envisaged for a later date. On this basis, the existing EU renewable energy targets for the UK, including the EU Renewable Energy Directive 2009/28/EC will remain applicable. It is however considered unlikely that any new EU legislation or updates to existing directives will be transposed into UK law.
      1.         2020 Targets
      1. In 2008, the European Parliament and Council agreed a set of climate and energy targets known as the “20-20-20” targets. The targets to be achieved by 2020 under the RED 2009/28/EC are:
  • a reduction in EU GHG emissions of at least 20% below 1990 levels;
  • 20% of EU energy consumption to come from renewable energy sources; and
  • 20% reduction in primary energy use compared with projected levels, to be achieved by improvements in energy efficiency.
    1. Based on this, the UK is subject to a mandatory national target of deriving 15% of gross final energy consumption from renewable sources by 2020 (HM Government, 2009a).
    2. The UK Renewable Energy Strategy (RES), which was published alongside and in parallel with the UK Low Carbon Transition Plan in July 2009 (HM Government, 2009b and 2009c), sets out the path by which the UK can meet the target of 15% energy consumption from renewable sources by 2020.
    1.         2030 Targets including European Union Renewables Energy Directive
    1. The 2030 Energy Strategy framework proposed by the European Commission (EC) in October 2014, builds on the 2020 climate and energy framework. The EC has proposed new climate and energy targets to be achieved by 2030 (European Commission, 2020a), including:
  • at least 40% cuts in GHG emissions compared to 1990 levels;
  • at least 27% of energy used in EC countries to be from renewable sources; and
  • at least 27% improvement in energy efficiency.
    1. The Revised Renewable Energy Directive (RRED) (2018/2001/EU) entered into force in 2018. Its aim was for the EU to remain a global leader in renewables while helping the EU to meet its emissions reduction commitments under the Paris Agreement (2016). The RRED sets the following targets:
  • at least a 32% share of renewable energy consumption within the EU; and
  • member States to establish their contribution to the renewable energy consumption target as part of integrated national energy and climate plans, pursuant to Regulation (EU) 2018/1999 of the European Parliament and of the Council.
    1.         2050 Low Carbon Economy
    1. The EU aims to be climate-neutral by 2050 – an economy with net-zero GHG emissions. This objective is at the heart of the European Green Deal and in line with the EU’s commitment to global climate action under the Paris Agreement (European Commission, 2020b).
    2. On March 2011, the EC presented “The roadmap for transforming the EU into a competitive, low-carbon economy by 2050” (European Commission, 2011). This report sets the goals for domestic EU action to keep global warming below 2 °C:
  • reducing GHG emissions by 40% in 2030 when compared to 1990 levels;
  • by 60% in 2040; and
  • by 80% in 2050.
    1. In order to achieve this, the roadmap suggests the need for all economic sectors to contribute to reducing GHG emissions and the need for increased investments in low-carbon energies (European Commission, 2011).
  1.              UK Climate Change and Energy Legislation
    1.         The Climate Change Act 2008
    1. Under the Climate Change Act 2008 the UK has committed to a net reduction in GHG emissions by 2050 of 80% against the 1990 baseline. In June 2019, secondary legislation was passed that extended that target to at least 100% against 1990 baseline. The Climate Change Act 2008 also established the Committee on Climate Change (CCC) which advises the UK government on emissions targets, and reports to Parliament on progress made in reducing GHG emissions. The CCC has produced five four-yearly carbon budgets, covering 2008-2032. These carbon budgets represent a progressive limitation on the total quantity of GHG emissions to be emitted over the five-year period. The sixth carbon budget advice to government, covering 2033-2037, was published in December 2020.
    2. The UK has met the target set in the first two carbon budgets, with GHG emissions being lower between 2008 and 2017 (HM Government, 2020a). The Institute for Government states that “the UK is on track to meet its third carbon budget (the current one, covering 2018-22) but is not on track to meet its fourth (2023-27) and fifth (2028-32) (Institute for Government, 2020).
    3. The UK Government subsequently produced two Carbon Plans (in 2009 and then in 2011) which set out how the UK is planning to achieve decarbonisation within the framework of the energy policy and provide a vision for 2050. The importance of offshore wind generation is noted in the most recent plan published in 2011 (HM Government, 2011a).
    1.         The Energy Act 2013
    1. The Energy Act 2013 makes provisions to incentivise investment in low carbon electricity generation, ensure security of supply, and help the UK meet its emission reduction and renewables targets.
    2. The Energy Act contains provisions for Electricity Market Reform (EMR), which sets out the framework for replacing Renewables Obligation Certificates (ROCs) with Contracts for Difference (CfD) to provide stable financial incentives to encourage investment in low carbon electricity generation.
    3. CfDs are private contracts between a low carbon electricity generator and the UK Government owned Low Carbon Contracts Company (LCCC). The aim of the CfDs is to give greater certainty and stability of revenues to electricity generators by reducing exposure to volatile wholesale prices, whilst protecting the consumer from paying for higher generation support costs when electricity prices are high (BEIS, 2020). CfDs aim to support development of renewable energy in the UK by incentivising development.
    1.         National Policy Statement
    1. National Policy Statements (NPSs) were designated under the Planning Act 2008. They give reasons for the policy set out in the statement, and must include an explanation of how the policy takes into account of government policy relating to the mitigation of, and adaption to, climate change.
    2. The Overarching National Policy Statement for Energy (NPS EN-1) sets out the UK Government’s policy for the delivery of major energy infrastructure and supports the requirements of the RED. NPS EN-3 sets out National policy for renewable energy infrastructure. Energy policy is generally reserved to the UK Government, however, in Scotland offshore planning decisions remain with Scottish Ministers. Therefore, while NPS EN-1 is still a relevant consideration for planning decisions in Scotland, planning in respect of offshore energy installations is the responsibility of Scottish Ministers.
    1.         UK Marine Policy Statement
    1. The UK-wide Marine Policy Statement (MPS) was published in March 2011, under Section 44 of the Marine and Coastal Access Act (MCAA) 2009, to provide a framework for marine spatial planning, specifically for the preparation of Marine Plans and to ensure that marine resources are used in a sustainable way (HM Government, 2011b). The MPS was jointly adopted by Scottish Ministers, the Secretary of State, Welsh Ministers and the Department of the Environment Northern Ireland (DOENI). The MPS confirms that all public authorities, in examining and determining applications for all energy infrastructure, the relevant marine policy statement must be followed, and the following must be considered:
  • the national level of need for energy infrastructure;
  • the positive wider environmental, societal and economic benefits of low carbon electricity generation;
  • that renewable energy resources can only be exploited where the resource exists and where economically feasible; and
  • the potential for inward investment on energy related manufacturing and deployment activity and employment opportunities and regeneration of local national economies, supporting the objective of developing the UK’s low carbon manufacturing capability.
    1. The MPS states that “Marine Plans should take into account and identify areas of potential for the deployment of different renewable energy technologies”, and notes that as offshore wind is the most developed offshore renewable energy technology, it has the biggest potential to improve the UK’s medium-term energy security.
    2. Potential impacts from renewable energy along with mitigation measures are considered in the NPS EN-3. This is specific to England and Wales, however the MPS confirms that in Scotland reference should be made to National Planning Framework (NPF) 2, now superseded by NPF 3 (Scottish Government, 2014a). The MPS states that renewable energy offers the potential for significant broad-scale environmental benefits through mitigating GHG emissions.
    3. The MCAA 2009 requires all public authorities taking authorisation or enforcement decisions that affect or might affect the UK marine area, to do so in accordance with the MPS and the relevant Marine Plans. Decisions on activities in the UK marine area will be plan-led once Marine Plans are in place (HM Government, 2011b).
    4. When considering potential benefits and adverse effects, decision makers should also consider any cumulative impacts of the proposals with other projects and activities. It also confirms that the level of assessment undertaken for any project should be proportionate to the scale and potential impact of the project, as well as the sensitivity of the environment concerned and in accordance with the EIA Directive (Directive 85/337/EEC), where applicable. It further notes that an Appropriate Assessment (AA) in accordance with the Habitats Directive (Directive 92/ 43/ EEC) may also be required, in accordance with relevant national legislation and Government circulars or guidance.
    1.         UK Offshore Wind Sector Deal
    1. The UK Government published the Offshore Wind Sector Deal in 2019, which sets the key commitments and actions from the UK Government to support offshore wind energy development (HM Government, 2019). “The Deal will drive the transformation of offshore wind generation, making it an integral part of a low-cost, low-carbon, flexible grid system and boost the productivity and competitiveness of the UK supply chain” (HM Government, 2019). The Sector Deal is divided in terms of ideas, people, infrastructure, business environment and places, laying key commitments for each of these. In relation to infrastructure, it investigates:
  • how clean, affordable energy is essential for economic prosperity;
  • the need of reducing energy costs for consumers;
  • how to deliver up to 30 GW of energy in a sustainable way; and
  • the plans for offshore wind energy beyond 2030.
    1. In 2020, the UK Government prepared a policy paper to reflect on the status of the offshore wind industry one year after the publication of the Offshore Wind Sector Deal (HM Government, 2020b). Since the launch of the Sector Deal in 2019, the UK Government and the offshore wind energy sector have made progress on delivering the commitments set out within the Sector Deal. Examples of these include:
  • the development and establishment of Offshore Wind Growth Partnership;
  • the development of Regional Clusters; and
  • the appointment of a Diversity Champion.
    1.              Scottish Policy and Legislation
      1. Climate Change (Emissions Reduction Targets) (Scotland) Act 2019Climate Change (Emissions Reduction Targets) (Scotland) Act 20192009 introduced binding targets on the Scottish Government to reduce net Scottish GHG emissions by at least 100% by 2045 from 1990 levels, with interim targets of at least:
  • 56% by 2020;
  • 75% by 2030; and
  • 90% by 2040 (HM Government, 2009d).
    1. The objective of this Act is to contribute appropriately to the world’s efforts to deliver on the Paris Agreement reached at the 21st Conference of the Parties of the United Nations Framework Convention on Climate Change (paragraph 5).
    1.         The Electricity Generation Policy Statement
    1. The Electricity Generation Policy Statement (EGPS) 2013 examines the way in which Scotland generates electricity and considers the changes which will be necessary to meet the targets that the Scottish Government has established (Scottish Government, 2013a). The Scottish Government’s policy on electricity generation is that Scotland’s generation mix should deliver a secure source of electricity supply at an affordable cost to consumers. Electricity generation should be largely decarbonised by 2030, while achieving the greatest possible economic benefit and competitive advantage for Scotland, including opportunities for community ownership and community benefits.
    2. The EGPS states that in order to meet the ambitious targets set by the Scottish Government “a sustained annual renewable deployment rate of more than twice that ever experienced in Scotland, and thus investment in and installation of large-scale schemes especially of offshore wind” is required. The EGPS states the following targets:
  • delivering the equivalent of at least 100% of gross electricity consumption from renewables by 2020 as part of a wider, balanced electricity mix, with thermal generation playing an important role though a minimum of 2.5 GW of thermal generation progressively fitted with Carbon Capture and Storage (CCS);
  • enabling local and community ownership of at least 500 MW of renewable energy by 2020;
  • lowering final energy consumption in Scotland by 12%;
  • demonstrating CCS at commercial scale in Scotland by 2020, with full retrofit across conventional power stations thereafter by 2025-2030; and
  • seeking increased interconnection and transmission upgrades capable of supporting projected growth in renewable capacity.
    1.         The Scottish Energy Strategy
    1. The Scottish Energy Strategy: The Future of Energy in Scotland (Scottish Government, 2017), sets out the Scottish Government’s vision for the future energy system in Scotland. The strategy outlines six priorities around Scotland’s 2050 vision which includes renewable and low carbon energy solutions. The strategy sets targets of the equivalent of 50% of the energy for Scotland’s heat, transport and electricity consumption to be supplied from renewable sources; and an increase by 30% in the productivity of energy use across the Scottish economy, by 2030. The strategy highlights the success of Scottish projects in offshore wind in recent CfD auctions and highlights the great potential for future development, particularly within deeper waters.
    1.         National Planning Framework 3
    1. The NPF 3 is the long-term strategy developed in 2014 by the Scottish Government, which expresses plans for development and investment in infrastructure by the Scottish Government over the next 25 years (Scottish Government, 2014a).
    2. In relation to renewable energy and offshore wind energy, one of the key visions for Scotland’s development is the enhancement of the low carbon economy and to be a world leader in low carbon energy generation, both onshore and offshore. The NPF 3 commits Scottish Ministers to maximising the economic benefits arising from the manufacturing, construction, operations and maintenance activities associated with offshore wind energy developments in Scottish Waters.
    3. The NPF 3 is supported by the Scottish Planning Policy (SPP) (Scottish Government, 2014b), which set out national plans and strategies to provide a vision of how Scotland should evolve in the future. This includes policy on a series of topics, including renewable energy, and acknowledges Scotland’s offshore renewable energy sources.
    4. In relation to offshore renewables, the SPP confirms that Off-shore renewable energy generation presents significant opportunities to contribute to the achievement of Government targets. Although the planning system does not regulate offshore development, it is essential that development plans take into account the infrastructure and grid connection needs of the off-shore renewable energy generation industry.
    1.         The Renewables Action Plan and 2020 Routemap for Renewable Energy in Scotland
    1. The Renewables Action Plan (RAP) was published by the Scottish Government’s renewable energy division in June 2009. The overall aim of the RAP is to support and accelerate the implementation of renewable energy in line with EU targets, and it sets out short-term targets towards the delivery of 2020 targets for renewable energy (Scottish Government, 2009). In 2011 an updated extension to the RAP was published by the Scottish Government, the ‘2020 Routemap for Renewable Energy in Scotland’. This document commits to generating an equivalent of 100% electricity demand from renewable sources, along with at least 11% renewable heat, by 2020 (Scottish Government, 2011). The Routemap presents the potential opportunities and challenges facing the offshore wind energy industry, and reflects these in four key actions:
  • market initiatives;
  • invest in infrastructure;
  • support innovation; and
  • grid regulation and charging.
    1. The latest update to the Routemap in 2015, highlighted that offshore wind is showing increasing promise as a source of renewable energy, and huge economic value (Scottish Government, 2015).
    1.         Scotland’s Offshore Wind Route Map
    1. The Offshore Wind Industry Group (OWIG) (consisting of industry, government, and public sector bodies) published Scotland’s Offshore Wind Route Map in 2010 to illustrate the opportunities, challenges and recommendations to OWIG to build a strong and sustainable offshore wind industry in Scotland (OWIG, 2010). The ambition of the offshore wind industry is highlighted as with 25% of Europe’s offshore wind potential, the manufacturing, supply chain, job creation and training opportunities present Scotland with huge scope for sustainable economic growth. The route map presented recommendations to support offshore wind making a significant contribution to achieving 80% of Scotland’s electricity consumption coming from renewable sources by 2020. The latest review of this route map was in 2013, which studied the progress that has been made in line with the original recommendations and updated targets (OWIG, 2013). This concluded that offshore renewables, especially the full deployment of Round 3 and the Scottish territorial waters round, will play a key role in meeting both the 2020 targets and 2030 decarbonisation targets (OWIG, 2013).
    1.         Offshore Wind Policy Statement
    1. The Offshore Wind Energy Policy Statement (OWEPS) (Scottish Government, 2020a) sets out ambitions to capitalise on offshore wind development and the role this technology could play in meeting commitments of net zero by 2045, as required by The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019. The OWEPS builds upon the ambitions outlined in Scotland’s Energy Strategy (Scottish Government, 2017). It also refers to the Offshore wind Sector Deal published in 2019 (HM Government, 2019) which details specific actions to be undertaken by governments and industry, designed to promote and grow the sector. Scotland’s Energy Strategy forms a key component of the implementation of The Offshore Wind Energy Policy Statement through the identification of suitable offshore wind farm development areas.
  1.              Scottish Marine Planning Policy
    1. The Scottish Government has introduced a system of marine planning that covers Scottish offshore waters (12 to 200 nm) waters under the Marine and Coastal Access Act 2009 and territorial waters (within 12 nm) under the Marine (Scotland) Act 2010. Decisions are made based on these Acts and in accordance with the appropriate Marine Plans, which are summarised below.
    1.         Scottish National Marine Plan
    1. The Scottish National Marine Plan (NMP) was adopted in 2015, covering the management of both Scottish inshore waters (within 12 nm) and offshore waters (12 to 200 nm). The NMP “sets out strategic policies for the sustainable development of Scotland’s marine resources and is compatible with the UK MPS and existing Marine Plans across the UK” (Marine Scotland, 2015). In 2013, the Scottish Government published the draft Sectoral Marine Plans (SMP) for offshore wind, wave and tidal energy (Scottish Government, 2013b). The aim of this SMP was to identify potential future options for commercial scale offshore energy developments. These plans were not formally adopted by the Scottish Government, but the draft options were included in the NMP (Marine Scotland, 2020). The NMP has been prepared in accordance with, and gives consideration to, the EU Directive 2014/89/EU, which introduces a framework for marine spatial planning and aims to promote the sustainable development of marine areas and the sustainable use of marine resources. It also sets several minimum requirements including:
  • achieving a sustainable marine economy;
  • ensuring a strong, healthy and just society;
  • living within environmental limits;
  • promoting good governance; and.
  • using sound science responsibly.
    1. General policies have been developed to support these five strategic objectives, and sectoral objectives (e.g. offshore wind and marine renewable energy) are presented in the context of these strategic objectives and general policies set out in the NMP. The NMP sets out ambitions for Scotland’s renewables and clean electricity to go beyond the 2020 targets (Marine Scotland, 2015).
    2. The NMP is relevant to the Proposed Development as it addresses the potential for interactions between renewable energy development and other marine users, while recognising that significant development of the offshore wind energy sector will require investment.
    1.         Regional Marine Plans
    1. Eleven Scottish Marine Regions (SMRs) have been created covering sea areas extending out to 12 nm. Regional Marine Plans (RMPs) are being developed at a local level within SMRs by Marine Planning Partnerships, to take account of local circumstances and smaller ecosystem units. Unless relevant considerations indicate otherwise, they are required to be in accordance with the NMP and MPS to ensure they are consistent with national objectives and priorities. They are subject to adoption by Scottish Ministers (Marine Scotland, 2015).
    2. The Proposed Development lies within the Forth and Tay SMR. At the time of writing there is no RMP in place for the region.
    1.         Sectoral Marine Plan for Offshore Wind Energy
    1. Scotland is committed to ensuring secure, reliable and affordable energy supplies, within the context of long-term decarbonised energy generation. In 2011, the first SMP for Offshore Wind Energy was adopted (Marine Scotland, 2011). In 2013, draft wind, wave and tidal SMPs were produced (Marine Scotland, 2013).
    2. Building upon the work undertaken in the 2011 and 2013 plans, the SMP for Offshore Wind Energy (Scottish Government, 2020b) incorporates recent technological, policy, regulatory and market development to create a new strategic planning process. The SMP seeks to contribute to the achievement of Scottish and UK energy and climate change policy objectives and targets, through the provision of a spatial strategy to inform the seabed leasing process for commercial offshore wind energy in Scottish waters, which:
  • minimises the potential adverse effects on other marine users, economic sectors and the environment resulting from further commercial scale offshore wind development; and
  • maximises opportunities for economic development, investment and employment in Scotland, by identifying new opportunities for commercial scale offshore wind development, including deeper water wind technologies.
    1. The SMP for Offshore Wind Energy identifies 17 plan options (POs), split across four regions, which can generate several GW of renewable energy, but observing the national limit on generating capacity of 10 GW. The POs identified have been subject to SEA, Habitats Regulations Appraisal (HRA) and socio-economic assessments, and reports have been produced to summarise these. Although the Berwick Bank Wind Farm project does not fall under the SMP and is not an option proposed within the 17 plan options areas, it has been considered within the SEA, Habitats Regulations Appraisal (HRA) and socio-economic assessments.
    2. The SMP guides relevant consenting bodies with decision making on licence and consent applications but does not predetermine the decision making processes. The SMP has been developed to ensure consistency with the objectives and principles set out within Scotland’s NMP (Marine Scotland, 2015) and the UK MPS (HM Government, 2011b).
  1.                   Planning Legislation
    1. As the Proposed Development is a generating station with a capacity of greater than 50 MW, it requires the following key consents, licences and permissions:
  • a Section 36 consent under the Electricity Act 1989;
  • a marine licence under the MCAA 2009; and
  • a marine licence under the Marine (Scotland) Act 2010 for the part of the export cable which is within 12 nm of the coast.
    1. Each of these consents, licences and permissions are described below. Should additional pre-construction licences be required, these will be discussed and agreed with the relevant consenting authority during the pre-construction phase of the Proposed Development.
  1.              Section 36 Consent
    1. As the Proposed Development is an offshore generating station which is greater than 50 MW and located in Scottish Offshore Waters (between 12 nm and up to 200 nm offshore) within the Scottish Renewable Energy Zone (REZ), there is a requirement for consent under Section 36 of the Electricity Act 1989. Section 36 consent will allow for the installation, operation and maintenance of wind turbines and inter-array cables associated with the Proposed Development.
  2.              Marine Licence
    1. Within the UK offshore waters (between 12 nm and up to 200 nm offshore), REZ, the MCAA 2009 applies. Under the MCAA 2009 (as amended) there is the requirement for a marine licence to be obtained prior to the construction, alteration or improvement of any works or deposit any object in or over the sea, or on or under the seabed. Similarly, under the Marine (Scotland) Act 2010 which applies to Scottish Territorial Waters (between 0 and 12 nm from MHWS) there is also the requirement for a marine licence prior to the construction, alteration or improvement of any works or deposit any object in or over the sea, or on or under the seabed.
    2. Where applications for both a marine licence under the MCAA 2009 and consent under Section 36 of the Electricity Act 1989 are made and where the Scottish Ministers are the determining authority, they may issue a note to SSER stating that both applications will be subject to the same administrative procedure. Where that is the case then that will ensure that the two related applications may be considered at the same time.
  3.              Planning Permission
    1. SSER will submit separate offshore and onshore applications to Marine Scotland and East Lothian Council (ELC), respectively, the latter being a single application for full planning permission, in accordance with the T&CP Act. It is currently anticipated that the applications will be made in May 2022.
  1.                   Environmental Impact Assessment Regulations
    1.              Overview
      1. In compliance with the EU Directive on the assessment of the effects of certain public and private projects on the environment (EIA Directive) (2011/92/EU, as amended by Directive 2014/52/EU), when applying for Section 36 consent, a marine licence or planning permission, an EIA Report is required to be prepared and submitted to support these applications if they are likely to have a significant effect on the environment due to factors such as their size nature or location. An EIA is specifically required (Schedule 2) for installations for the harnessing of wind power for energy production (wind farms) if:
  • the development involves the installation of more than two wind turbines; or
  • the hub height of any wind turbine or height of any other structure exceeds 15 m.
  • The Proposed Development will consist of more than two wind turbines, with a hub height over 15 m, and therefore requires an EIA to be undertaken.
  • The EIA must fulfil the requirements of the following regulations:
  • in respect to a Section 36 consent application: The Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017;
  • in respect to a marine licence application: The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017; and
  • in respect to a planning application: The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017.
    1. Under Regulation 15 (2) of the EIA Regulations (The Marine Works (Environmental Impact Assessment (Scotland) Regulations) the information provided must include that which is necessary to “identify the location, nature and purpose of the works, and must indicate the main environmental consequences to which the applicant proposed to refer in the EIA Report”. This is supplemented by Schedule 4 of the 2017 EIA Regulations which specify the requirements of the information for inclusion in environmental impact assessment reports. Apx. Table 4. 1  Open ▸ below outlines where the requirements of Schedule 4 will be considered within the Proposed Development EIA Report.


Apx. Table 4. 1:
Requirements Under The Marine Works (Environmental Impact Assessment) (Scotland) Regulations 2017 and Where These are Proposed to be Addressed in the Offshore EIAR

4.4.2             Pre-application Consultation

  1. Where activity is planned within the Scottish Territorial Waters, the Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013 (hereafter referred to as the PAC Regulations) apply. There is no provision for PAC in the MCAA 2009, so these requirements do not apply in respect of relevant applications in the Scottish Offshore Region. There are no statutory requirements for consultation during the pre-application stage for Section 36 consent applications, however the principles of the PAC Regulations will be followed for all offshore components of the Proposed Development (below MHWS).
  2. Public consultation will be carried out for the onshore and offshore elements at the same events to give 3rd parties a full understanding of the whole project.
  3. The PAC Regulations require Applicants for a ‘prescribed class’ of activity to notify the Maritime and Coastguard Agency (MCA), Northern Lighthouse Board (NLB), NatureScot (NS), Scottish Environment Protection Agency (SEPA), and any delegate for a relevant marine region. Applicants must hold at least one pre-application event at which these bodies are notified, 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. A PAC report must be submitted alongside the marine licence application.
  4. Further information on the proposed consultation for the Proposed Development is outlined in section 4.3.4.
  1.                   The Habitats and Bird Directive and Associated Regulations
    1. The Council Directive 92/43/EEC (the Habitats Directive) was adopted in 1992, providing a means for the EU to meet its obligations under the Bern Convention. The aim of the Directive is to maintain or restore natural habitats and wild species listed on the Annexes at a favourable conservation status. This protection is granted through the designation of European Sites and European Protected Species (EPS). The European Directive (2009/147/EC) on the conservation of wild birds (The Birds Directive) provides a framework for the conservation and management of wild birds within Europe. The Directive affords rare and vulnerable species listed under Annex I of the Directive, and regularly occurring migratory species, protection through the identification and designation of Special Protection Areas (SPAs).
    2. The Directives have been transposed into Scottish Law by various regulations, those of relevance to the Project include:
  • the Conservation (Natural Habitats &c.) Regulations 1994 (as amended);
  • the Conservation of Habitats and Species Regulations 2017; and
  • the Conservation of Offshore Marine Habitats and Species Regulations 2017 (which apply to marine licences and Section 36 applications within the Scottish Offshore region).
    1. These are hereafter referred to as the Habitats Regulations.
    2. The Habitat Regulations require that where a plan or project that is not directly connected with, or necessary to the management of an European site, but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. Marine Scotland must therefore consider whether the Proposed Development is likely to have significant effects on the conservation objectives of the sites considered in the Habitats Regulations Appraisal (HRA), and, where LSE cannot be excluded at the screening stage, and in the absence of mitigation measures[11], an ‘Appropriate Assessment’ of the implication of the plan or project must be undertaken by the competent authority before consent may be given for the proposed project.
    3. The HRA process is a multi-stage process aligned with European Commission (EC) guidance documents ‘Assessment of plans and projects significantly affecting Natura 2000 sites’ (EC, 2001) and ‘Managing Natura 2000 sites: The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC’ (EC, 2019). In accordance with this guidance from the Commission, the obligations arising under Article 6 establish a step-wise procedure:
  1. the first part of this procedure consists of a preliminary 'screening' stage to determine whether, firstly, the plan or project is directly connected with or necessary to the management of the site, and secondly, whether it is likely to have a significant effect on the site; it is governed by the first sentence of Article 6(3);
  1. the second part of the procedure, governed by the second sentence of Article 6(3), relates to the appropriate assessment and the decision of the competent national authorities; and
  2. a third part of the procedure (governed by Article 6(4)) comes into play if, despite a negative assessment, it is proposed not to reject a plan or project but to give it further consideration. In this case Article 6(4) allows for derogations from Article 6(3) under certain conditions.
    1. The Proposed Development offshore HRA screening assessment is currently being prepared and will be consulted on in Quarter 4 of 2021.
    2. The step-wise procedure has the aim of determining LSEs and, where necessary, assesses the implications of the Proposed Development for their potential to adversely affect the integrity of a European site or sites in accordance with Article 6(3) of the Habitats Directive. If a determination of adverse effect on site integrity is made despite the application of mitigation measures intended to avoid or reduce the harmful effects of the project(s) on the sites concerned, the step-wise procedure then provides for a derogation procedure under Article 6(4). Such a derogation is available to the competent authorities concerned following three tests to be met in sequential order:
  1. there are no feasible alternative solutions to the project which are less damaging;
  2. there are “imperative reasons of overriding public interest” (IROPI) for the project to proceed; and
  3. compensatory measures are secured to ensure that the overall coherence of the network of European sites is maintained.
    1.                   European Protected Species (EPS) Licensing
      1. 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 Conservation of Offshore Marine Habitats and Species Regulations 2017. All cetacean species (whales, dolphins and porpoise) are EPSs. If any activity is likely to cause disturbance or injury to an EPS a licence is required to undertake the activity legally.
      2. Activities which can be licenced under EPS licences include those such as subsea noise disturbance to marine mammals due to piling construction activities. EPS licences are obtained from NatureScot or the Scottish Ministers, depending on the reason for the licence application. Although the grant of EPS licences is separate to the Section 36 and marine licence application process, it can be considered in parallel by Marine Scotland in order to constrict timelines.
      3. Should additional pre-construction licences be required, these will be discussed and agreed with the relevant consenting authority during the pre-construction phase of the Proposed Development.


4.7                  Decommissioning

  1. Sections 105 to 114 of the Energy Act 2004 (as amended by the Energy Act 2008 and the Scotland Act 2016) (hereafter referred to as the Energy Act) contain statutory requirements in relation to the decommissioning of offshore renewable energy installations (OREI) and their related electricity lines. Under the terms of the Energy Act, Scottish Ministers may require a person who is responsible for these installations or lines in Scottish Waters or in a Scottish part of a REZ to prepare (and carry out) a costed decommissioning programme for submission to and approval by Scottish Ministers (Marine Scotland, 2020).
  2. The responsibilities and powers associated with decommissioning for Offshore Renewables Energy Installation within Scottish Waters transferred from the Secretary of State, to Scottish Ministers in April 2017 (Section 62 of the Scotland Act 2016 transfers to Scottish Ministers powers under the Energy Act Part II section 2). Up to this point, BEIS was responsible for requiring decommissioning programmes and securities for Offshore Substation Platforms (OSP) (Scottish Government, 2019c). As part of this change in responsibilities, Marine Scotland are seeking to establish robust policies and procedures covering decommissioning, including securities, for offshore wind, wave and tidal projects. A consultation on future plans for decommissioning for Offshore Renewable Energy Installations in Scottish waters commenced in November 2019 and closed on 18 March 2020. Following this consultation, guidance will be finalised and made available to industry.
  3. Scottish Ministers also have the power to determine specific approaches to decommissioning, including stipulating what form, timing and size of financial securities are required. The expected content of a decommissioning programme includes: decommissioning standards, financial security, residual liability, and, industry cooperation and collaboration.
  4. The draft Offshore Renewable energy decommissioning guidance states (Section 5 – Submission, approval and review of decommissioning programmes) that “an indication of the decommissioning proposals should be included as part of the statutory consenting or licensing process so that the feasibility of removing the infrastructure can be assessed as part of the application process” (Scottish Government, 2019c). Question set out as part of this consultation state that the Scottish Government “aims to ensure that all future offshore renewable energy installations have an approved decommissioning programme in place prior to construction, as this will help manage the risk of projects going into the water without proper plans in place for removal” (Scottish Government, 2019)”.
  5. The scope of decommissioning requirements in Scotland is between the MLWS mark and the seaward limits of the territorial waters, including coastal water and the Scottish part of the REZ. The Energy Act does not cover the intertidal zone, however decommissioning of infrastructure within the intertidal zone should be carried out under any conditions attached to a Marine Licence (under the Marine Scotland Act 2010).



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