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FUNCTIONS, POWERS AND GOVERNANCE

Functions and Powers of the Park Authority

The National Parks (Scotland) Act 2000, which can be viewed at http://www.opsi.gov.uk/legislation/scotland/acts2000/20000010.htm , applies both to National Parks on land and in the coastal and marine environment. It provides
for the establishment of a National Park Authority when designating a National Park and outlines the general purpose and functions of the Park Authority. National Park Authorities have a duty to prepare a Plan which sets out the policy for management of the Park. Annex D outlines further details.

The implementation of the Plan within the existing legislative framework would be facilitated in several ways and these could include the Park Authority:

• Undertaking a range of specific functions provided for by Schedule 3 (see Table 2) of the Act such as conservation recreation and visitor management, research, survey and monitoring; awareness and education programmes, and demonstration projects;
• Funding specific initiatives and capital projects, alone or in combination with others;
• Drawing up concordats, voluntary agreements, codes of conduct, etc;
• Entering into management agreements or drawing up and enforcing bylaws and management rules for the area;
• Becoming a statutory consultee to existing consultees thus ensuring its views are sought on proposals;
• Entering into voluntary agreements with local authorities and public bodies;
• Being given the responsibility for functions currently exercised by other public bodies or local authorities;
• Providing an interface between devolved and reserved matters of relevance to the Coastal and Marine National Park within the context of existing responsibilities.

What functions and powers would you wish a Park to have?

The approach and balance of effort between these elements would be specific to the location and design of a Park, depending on the management issues that a Park Authority needs to address and its powers and functions. The overall approach to the Park model will be a significant factor and three potential approaches based on the challenges for planning and managing the coastal and marine environment have been identified:

• National Park Authority as planner and enabler
• National Park Authority as planner, enabler and manager
• National Park Authority as planner, enabler, manager and regulator

Each of the approaches adds a further role to the last, with the third envisaging the greatest direct role for the Park Authority in day to day operations. There are, however, several common elements. The following table provides further details on how the National Park Plan could be implemented under each approach and what role the Park Authority could perform:

TABLE ONE

The National Parks (Scotland) Act 2000 applies both to National Parks on land and in the coastal and marine environment. It provides for the establishment of a National Park Authority when designating a National Park and outlines the general purpose and functions of the Park Authority.

The 'planner and enabler' approach to the National Park Authority is described by SNH as the regulatory 'light touch' option. That does not necessarily mean that the overall amount of regulation within the area would be less. Instead it refers to the fact that the Park Authority itself would have a more limited role in regulating activities and these would largely remain the function of other organisations. This approach would allow for the initial development of the Park to focus on strategic planning and making things happen on the ground. It could also be expected to be the least costly approach in terms of expenditure by the Park Authority and would lead to less costs associated with adaptation or restructuring of existing regulatory processes. It could best ensure that the Park Authority adds value to existing arrangements. There is, however, a risk that under this approach the Park Authority could lack sufficient powers and may prove ineffective in influencing the activities of other bodies. In addition, if it did not have much presence on the ground it could seem distant from communities and other stakeholders in its area.

The second model could address some of the possible concerns by providing a stronger formal role for the Park Authority but care would be needed in defining functions to ensure simplification of existing administrative arrangements or adding value to existing management arrangements. Higher costs than the first option could be envisaged to ensure it has the necessary expertise in these additional areas of activity.

The third option amounts to the most direct role for the Park Authority and we suggest that could make it easier to understand and provide the potential to simplify existing administrative arrangements. This option is likely to have the highest costs but there is the potential for sharing some costs. In addition, a potential disadvantage of this option is that a stronger regulatory role for the Park Authority could interfere with the planning and co-ordination role.

Further details on how the Park Authority could relate to town and country planning, conservation and recreation management, inshore fisheries and aquaculture are outlined in the following subsections and these are relevant to the third option in particular.

There are a number of strong arguments that can be made in favour of a Park Authority being a full planning authority and for some possible areas these may be sufficient to outweigh the preferred overall approach of planner and enabler.

Relationships with Town and Country Planning

Section 10 of the Act enables the arrangements for town and country planning functions (this is separate from the concept of marine spatial planning) in a National Park to be specified and may take the form of the National Park Authority:

1. being the planning authority for the area of the Park;
2. being the planning authority only in respect of development plan preparation;
3. having specified functions in respect of planning, which could include the planning function remaining with local authorities in the area and the National Park Authority being given functions under the designation order as a consultee.

That raises the question of whether planning control within any land component of the Park area should remain with the local authority or whether it would be preferable for the Park Authority to take on this role. There are a number of strong arguments that can be made in favour of a Park Authority being a full planning authority and for some possible areas these may be sufficient to outweigh the preferred overall approach of planner and enabler.

Do you consider that planning control for the land component should remain with the local authority or should it be transferred to the Park Authority?

Conservation and Recreation Management

There are various provisions of the Act for the Park Authority to undertake conservation and recreational management functions in different ways including through the Plan, use of bylaws and management agreements, research and survey and employing staff.

Comments are invited on the potential functions of a Coastal and Marine National Park relating to conservation and recreation management.

The suite of designations for biodiversity, earth heritage and landscape is not as well developed in marine areas as on land and the scope for establishing additional areas for marine biodiversity could be considered. The development and implementation of the Plan is key to better planning and management, and provides a vehicle for Park wide approaches and potentially other specific measures such as geographic and temporal zoning. The management and bylaw making powers provided in the Wildlife and Countryside Act 1981 in relation to marine nature reserves are a further potential means to manage on an area basis.

Do you think that the potential for zoning to form an element of the development and implementation of the Plan is sufficient or should other site-based protection measures be considered?

There is the issue of whether a last resort 'stop' power for the Park Authority to prevent potentially damaging activities should be considered to complement the biodiversity duty on public bodies contained in the Nature Conservation (Scotland Act) 2004 http://www.opsi.gov.uk/legislation/scotland/acts2000/20000010.htm

Ministers seek consultees' views on whether the Park Authority should be given a last resort 'stop' power.

Schedule 3 of the National Parks (Scotland) Act 2004 outlines other aspects considered relevant to enjoyment and recreation such as the added value of the Park Authority having functions to promote, plan and manage access to the area within the Park and ranger services.

TABLE TWO

These general powers are summarised below:

Comments on these issues are invited.

Relationships with Inshore Fisheries Management

The Strategic Framework for Inshore Fisheries in Scotland http://www.scotland.gov.uk/library5/fisheries/sfifs-00.asp provides for the establishment of Inshore Fisheries Groups to ensure management tailored to local conditions within a national context.

Scottish Ministers have also made it clear that any Park Authority will work closely with the new Inshore Fisheries Groups ( IFGs) and that the IFGs will continue to manage fisheries in the Park area.

Comments on this approach are invited.

How can Inshore Fisheries Groups work with the Park Authority?

Relationships with Aquaculture

Any Coastal and Marine National Park located on the west coast is likely to contain some marine aquaculture. There are a number of options for the future relationship between a Park Authority and aquaculture as follows:

(a) It may make sense for the Park Authority to assume the planning function for this activity but much will depend on the area chosen;

(b) The local authority and existing regulators would continue to manage aquaculture in the Park, but be guided by the Park Plan and local frameworks for aquaculture prepared by the local authority and endorsed by the Park Authority;

(c) As (b) above, but with the Park Authority preparing the local frameworks for aquaculture jointly with the local authority; or

(d) As (c) above, but with the Park Authority also becoming a statutory consultee to the local authority on casework.

In Ministers' view, option (d) has the potential to add to the complexity of current arrangements while options (a) and (c) limit the Park Authority's role to setting the wider strategic framework for aquaculture within the National Park area. Option (b) is the minimal approach but a further option could be considered as follows:

(e) The local authority and existing regulators would continue to manage aquaculture in the National Park, but be guided by the Park Plan, and the Park Authority should be consulted on local frameworks for aquaculture prepared by the local authority.

The advantage of the potential approach outlined in (e) is that it would avoid complicating the process for bringing fish farming into the planning system while preserving the potential to revisit the situation over time if necessary in the light of experience. The Scottish Executive's publication "Strategic Framework for Aquaculture" can be viewed at: http://www.scotland.gov.uk/Topics/Fisheries/Fish-Shellfish/18364

Do you agree with the proposed approach (option e) to managing aquaculture?

Selecting the right model for the National Park Authority

Our view is that the approach to the National Park should be closest to the first two options, at least in the initial phase of its development with the powers and functions of the Park Authority developing as necessary over time, perhaps in light of periodic strategic reviews of the Park Authority and based consensus and goodwill. (The three potential approaches are detailed in Table 1.)

This approach would allow the Park Authority to concentrate initially on Park planning which will be a significant task given that techniques for integrated coastal zone management and marine spatial planning are in their infancy. Also, this need not preclude some future adjustments to the powers of the Park Authority once it had established itself. This approach is not exluded by the requirements of the 2000 Act as Section 13 requires the plan to be reviewed within 5 years and Section 30 provides for Ministers to modify the functions of the National Park Authority.

No decisions have been taken on the preferred model for the Park Authority and much depends on the needs and characteristics of the chosen location. The Scottish Executive believes the third option might have less merit, particularly in the early stages of establishment of Scotland's first Coastal and Marine National Park, and that the first two models for the Park Authority are more attractive, i.e. as 'planner and enabler' or 'planner, enabler and manager'. This would provide an initial focus on the Park Plan and building relationships with other public bodies and stakeholders while maintaining flexibility to adapt to future needs in the light of experience.

Which approach do you prefer for the National Park Authority and why. Comments are also invited on the option of a phased approach that provides for review at a later date.

The general legislative framework contained in the Act is outlined in Annex D and enables the powers, functions, structure and governance to be tailored to suit the needs of the area in which the National Park is located. Section 31 provides considerable scope to modify where necessary various provisions of the Act in relation to an area that includes the sea.

Do you think the existing powers and functions provided in the Act are sufficient for a Coastal and Marine National Park Authority?

Governance

The Board of the National Park Authority, the principal decision-making body of the Authority that is directly accountable to Scottish Ministers is defined in the National Parks (Scotland) Act 2000, principally schedule 1. It can be no larger than 25 members and Ministers can only reserve places on the Board for nominees of local authorities.

Within the existing legislative framework provided by the National Parks (Scotland) Act 2000, the powers, functions structure and governance of any Park Authority can be tailored to meet the specific needs of each Park area.

The basic pattern could also be applied in the case of a Coastal and Marine National Park:

• A Board including direct local representation; local authority nominations and national appointments;
• A Board with a majority of individuals living, working within, or representing the Park area;
• National appointments selected on the basis of their relevant experience and expertise rather than because they represent specific organisations.

The legislation provides flexibility for establishing the Board of a Coastal and Marine National Park on a substantially different basis from land-based National Parks (under Section 31 of the Act) should it be considered that is necessary to reflect the coastal and marine environment.

The size of the Board would depend on the areas being considered and the powers and functions of the Park. The number and selection of local authority nominations would also need to be considered further in the light of decisions on the preferred area. There may also be issues relating to the principle of direct elections if the population of the Park area is small and dispersed and mechanisms for wider involvement of stakeholder interests will need to be explored.

Are the principles for establishing the Park Board the right ones for ensuring local and national views are taken into account, including the views of those using the area but who do not live there?

Do you have any other views on the Board and governance of the National Park Authority?

Financial Implications

At this stage we have not been able to provide precise estimates on running costs for a Coastal and Marine National Park Authority. This will depend on the area chosen and the powers and functions of the Park Authority. SNH's advice provides details on costs of the two existing National Parks but these may be an over estimate of the costs of the Park Authority for a Coastal and Marine National Park if it initially follows the planner/enabler model. Once Ministers have taken decisions, based on responses to the consultation, the financial implications of any proposal will need to be considered as part of the 2007 Spending Review. Annex A contains a regulatory impact assessment that will be updated and refined once we have assessed responses to this consultation.

Comments are invited on the running costs and financial implications of a Coastal and Marine National Park.

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