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Annex 6 - Marine Spatial Planning Workstream Report

AGMACS (06) 26

Advisory Group on Marine and Coastal Stratgey

Marine Spatial Planning in Scotland

Paper by RTPI in Scotland

Introduction

1. This paper seeks to assist the group to fulfil its remit, as far as it can under present circumstances, to "consider the potential for marine spatial planning and how such a system might operate in practice". The paper follows the interim report to the group on 16 May which was primarily intended to explain the concepts involved in marine spatial planning. It considered the international agreements to explore marine spatial planning as a tool for better management of the seas, the views of certain stakeholder interests in the UK, the context of ongoing work on the Scottish Executive's strategy and the UK Marine Bill consultation paper which had just been published at that time.

2. It is the prospect of a UK Marine Bill and the current uncertainty with regard to its provisions for marine spatial planning and for the impact of any such provisions on the relationship between devolved administrations and UK government which constrain the options in front of the group most. This paper therefore makes certain assumptions about future developments at a UK level and sets out options for the group to consider, as a consequence.

3. These outstanding uncertainties have made it difficult to achieve comprehensive stakeholder input to the final form of this paper but continuing dialogue through the Scottish Coastal Forum and through Scottish Environment LINK have allowed a number of stakeholder interests to be taken into account. In addition, the contribution of SNH has been taken into account through its collaboration with the other UK country agencies in the preparation of the paper "The Added Value of Marine Spatial Planning - An Informal Discussion Paper", published a year ago.

4. While commercial interests in the marine environment have been represented to some degree through Scottish Coastal Forum, the information available tends to have been dominated by conservation interests. In addition, many of the commercial interests are dependent on regulation and policy frameworks determined through reserved UK government functions. Nevertheless, if there has been a second theme in the contribution of the RTPI to the work of AGMACS, beyond that of defining the concept of marine spatial planning, it has been that of ensuring that the case for planning for development in the marine environment is equally considered to that of planning for conservation.

What is MSP and why do we need it?

5. The interim report to the group in May sought to address these questions in considerable detail and is referred to for its terms. Nevertheless, it is worth reminding ourselves that a clear concept of marine spatial planning is required which is based on the fundamental principles of spatial planning, namely: -

• It deals with the spatial implications of development and activity with different, interconnected scales of geographical significance.
• There requires to be an integrated and collaborative approach to ensure that all relevant factors affecting spatial development are considered both in plan preparation and in delivery mechanisms.
• Such integration applies to objectives for economic development, social justice and inclusion, environmental integrity and transport and accordingly makes a major contribution to sustainable development.
• The processes of planning must be fully inclusive and its outcomes should embrace equality and reduce social and spatial inequality.
• Plans and planning policy must be value driven and seek to add value, rather than impose a straightjacket of common standards.
• A plan is not just a map, it has to be associated with the activity of planning as a management process and must therefore be action orientated and linked to mechanisms, both regulatory and proactive, for ensuring that the intended results are achieved.

6. These are principles which, until recently, have been most associated with the terrestrial town and country planning system. Within this regime, it has been an issue over the years as to whether it adequately secures an integrated planning process for all types of development. In recent years, driven by national and international policy agendas for social justice and the environment, the system has become more comprehensive with the elimination of Crown Immunity, the introduction of Strategic Environmental Assessment and, in the case of Scotland, the development of the National Planning Framework. It can be argued, therefore, that any marine spatial planning system should also ensure a comprehensive and integrated approach to physical capital development.

7. What the town and country planning system does not do, however, is integrate planning for development with planning for land use management activity. Integrated spatial planning over land use management tends to take place within special project arrangements such as the National Park Plans. In the marine environment, however, much of the debate about MSP has been dominated by the extent to which the dynamism of the marine environment and the complex existing regulatory regimes require a stronger integrated spatial mechanism to deal with activity management such as marine conservation, fishing and other resource exploitation, navigation and recreation, all of which are relatively ephemeral compared with permanent development but can create a lasting impact on the marine environment or can compete for the use of its space at any moment in time.

8. A further issue which is raised through comparative analysis with the terrestrial system is that of the need for a statutory system and a new regulatory framework. This is the essential administrative characteristic of the town and country planning system in view of the fact that it deals primarily with high value, long term capital investment which can radically change not just the natural resources of the land but its capacity to serve the social and economic needs of society in and around the communities in which people live. Finally, in the greater scale of things, land development takes place primarily within the highly pressured confines of two dimensional space.

9. By contrast, the marine environment offers a significant third spatial dimension for many types of development and use. While coastal communities are clearly sensitive to the way in which their offshore environment is developed and used, their interest falls off rapidly and is clearly far less intensive than the sensitivity of landward communities to changes in their living environment. To some extent, it is these considerations which have raised the question of whether a marine spatial planning system requires only a light-touch coordinating role at the centre.

10. To a large extent, this question is best answered through taking a perspective on development pressures on the marine environment, not so much activity pressures. The Irish Sea Pilot Project demonstrated very clearly that there is major congestion from a range of developmental activities in the Irish Sea and there is no doubt, from the views of the number of European countries around the southern shores of the North Sea, that some parts of this environment are subjected to major pressures for new infrastructure for oil and gas, renewable energy, navigation, aquaculture etc. To this we might add such things as carbon sequestration and other activities in the future. This might not seem so obvious an issue around much of the coast of Scotland. Nevertheless, the only solution to such pressure on space is through the added value, and not just conflict resolution, which marine spatial planning can bring. In a truly forward planning environment, there is a greater opportunity to reconcile the needs of all conflicting demands for space, create new opportunities and provide a framework within which individual interests can confidently meet their own needs.

11. This paper will consider options for marine authorities, regulatory frameworks and the scope of marine spatial planning at different levels in the system, in more detail below, which will allow a more refined view of how a statutory system will work for the marine environment. At this stage, however, it is recommended that AGMACS confirms its support in principle for a system of marine spatial planning in Scotland, integrated as far as possible with UK and international marine planning systems, consistent with the powers of devolved government in Scotland and with a need to maintain a comprehensive system for the management and control of marine development and activity at all levels of significance from local to international.

The UK Marine Bill Consultation Paper

12. In its consultation paper of March, the UK government based its consultation on the MSP element of the bill largely on the recommendations of the Irish Sea MSP Pilot: -

a. Marine spatial planning should be implemented as a statutory system;

b. Marine spatial planning should be implemented at a regional scale, with cooperation between devolved administrations, particularly in boundary areas. Land should apply out to 200 nautical miles (or to appropriate national boundaries), and landward to either mean high water or low water mark, depending on the practicalities of modifying the current terrestrial planning boundaries;

c. A plan-making body (a Marine Management Organisation, or MMO, if established) should have responsibility for coordinating a spatial plan;

d. Strategic Environmental Assessment ( SEA)/sustainability appraisal and public participation should be integrated into the process;

e. Marine spatial planning should seek to plan for a twenty year period, subject to review every five years. The plan-making body should take a long-term view on issues such as climate change;

f. A plan framework should be established (similar to the terrestrial system introduced under the Planning and Compulsory Purchase Act 2004), to provide a framework within which plans would be created and coordinated. Regional "subsidiary" plans should be developed where appropriate, where other non statutory alternatives would not achieve the desired objective;

g. Plans should identify preferred locations for particular future activity, but should be applied flexibly to take account of uncertainties and rapidly changing technology;

h. SEA should be used to collect additional data to reduce key uncertainties in plan policies.

13. While the analysis of the responses has not yet been published, let alone conclusions drawn by the government itself, indications of a generally positive response are available from the reports of the Marine Bill Forum meetings held around the country by DEFRA in May and from the Prime Minister's letter to David Milliband MP, who took over the portfolio in the recent reshuffle, which asks him to press ahead with a Marine Bill.

14. As indicated in the introduction, it is necessary to make certain assumptions about development at a UK level in order to establish clearly a context within which a Scottish MSP system might operate. Accordingly, some of the key assumptions based on the above recommendations might be: -

a. Statutory System. There is likely to be statutory provision for a marine spatial planning system with an overarching UK perspective, specifying a body to be responsible, the basic structure of a planning process and arrangements, if appropriate, for collaboration between UK administrations. While there is no recommendation from the Irish Sea Pilot Project on the matter of implementation and, specifically, regulation (the final report states, at paragraph 2.4.1 "The process of implementing the plan is arguably beyond this study as it will rely, in part, on a review of existing procedures."), the Marine Bill consultation paper contains a chapter which pursues the aim of streamlining and integrating many of the regulatory regimes at sea. It also states "an agreed ( MSP) plan would provide a basis for transparent and consistent decision-making for licence applications and appeals, and allow users of the sea, developers and those with an interest to make future decisions and projections with greater certainty and confidence". Any provisions with regard to streamlining existing regulation in a Marine Bill, may well make specific reference to MSP and these regulatory regimes.

b. Regional Scale. This recommendation reflects the general consensus that the main building block for a marine spatial planning system should be at a regional level equating generally with the concept of regional seas as now defined around the UK by the Review of Marine Nature Conservation in 2001. Some kind of regional plans with statutory force might be expected for regional seas within English waters. They might also be expected for regional seas which include Scottish waters but with deference to the right of the devolved administration to exercise its own functions, especially to the twelve nautical mile limit. However, the recommendation suggests cooperation between devolved administrations, particularly in boundary areas, and this issue is explored further below.

c. Plan Making Body or MMO. The creation of a Marine Management Organisation ( MMO) is not likely to depend exclusively on a marine spatial planning system. While it is difficult to identify a suitable existing body to take on the role, views have been expressed that the cost of such a body could not be justified purely for an MSP system in isolation from other marine governance systems. Accordingly, the responsible body at UK (and England) level is likely to depend on the case for an MMO being made through the range of other functions which may be assigned to it. If this were to be the case, a single UKMMO might oversee the implications of MSP for reserved matters within Scottish waters but could not override Scottish jurisdiction in devolved matters. Accordingly, it could only take a truly integrated view if it were to have full collaboration with the devolved administration.

d. The Strategic Environmental Assessment will be required in any case under any system which is adopted, whether under the UK or Scottish regime.

With regard to the other recommendations (public participation, plan horizon and review cycle, subsidiary plans, scoping at a local level and data collection), decisions by the UK government will not have direct consequences for the devolved administration. These are areas in which Scotland will be unconstrained in its approach, although there will be significant benefits to users of the sea and of MSP systems in the UK if processes are standardised. It is recommended that AGMACS proceeds meantime on the assumption that some kind of statutory MSP system will be introduced at UK level with an emphasis on plan making at Regional Sea level and with an MMO or similar responsible body

Scoping

15. The two main criteria for scoping the relevant content of marine spatial plans are

• that the issues dealt with should be truly spatial, and
• that they should require a suitably integrated perspective.

From the point of view of existing regulation, therefore, there is no suggestion that the review of licensing arrangements should lead to a single marine planning consent linked to marine spatial plans if the issues concerned are not spatial in nature and do not require integrated consideration with other spatial elements. For example, it would not be relevant to fishing quotas unless these were controlled by area and not just by landings. On the other hand, there are a number of significant forms of development which are controlled by UK government licensing and regulation, such as offshore oil and gas exploration and production which are largely excluded from the intentions of the Marine Bill, although the indications may be that the DTI is prepared to cooperate voluntarily with a plan-making system. The consultation paper makes no provision for integration of the oil and gas licensing regime, however.

16. The following table makes a simple assessment of some of the existing regulatory functions, both reserved and devolved, which have spatial implications and for which provision should be made in marine spatial planning.

A Three Tier System

17. Scoping and jurisdictional issues which have been mentioned earlier in this paper become clearer when applied to a tiered structure within any MSP system. The Marine Bill consultation paper and the Irish Sea Pilot and most other commentaries seem to accept, without question, the notion of a three tier structure: -

• National - UK and devolved administrations
• Regional - Regional seas, or parts thereof in devolved territories
• Local - Subsidiary plans, local action plans etc.

18. It is through the adoption of such a structure that jurisdiction issues can be resolved through collaboration at the higher level to permit autonomy at the local level based either on freedom to exercise devolved powers or on further delegation or agency arrangements.

19. The hierarchy requires not only a resolution of reserved and devolved responsibilities but also a clear understanding of which spatial issues are more appropriately dealt with at which level. For example, it is impossible to adopt a meaningful mosaic of marine protection areas ( MPAs) within a local estuary or even within the twelve mile limit of devolved territorial waters, if it is to address meaningfully the balance which requires to be struck between conservation and exploitation across a hugely dynamic ecosystem. Also, it would be unnecessary and unreasonable to adopt a planning policy framework at UK level for cockle fishing.

20. On the other hand, a tiered system also brings into question how any regulatory measures are implemented. While the planning policy framework for cockle fishing might well be developed at a local level, it is unlikely that the appropriate authority for orders under the Inshore Fishing (Provision of Fishing for Cockles) Order procedures would be exercised locally.

21. A tired system also must include a suitable mechanism to ensure coherence of the policies across the system and compliance in implementation of the policies, where necessary. This is generally regarded as the principle of 'nesting' of spatial policies.

22. National. On the assumption that there is a form of MMO at UK level, the main issues arising for Scotland as far as the national level of any structure is concerned are as follows: -

• Should the devolved administration seek to be an equal partner in a single UKMMO which has direct responsibility for the marine spatial planning system in all administrations or should it collaborate at UK level in a UK Marine Spatial Planning Conference with the UKMMO effectively being the English MMO, and establish a separate Scottish MMO or equivalent?
• While some form of UK wide marine policy framework might be expected, at least within the scope of reserved functions, should the Scottish Executive use the National Planning Framework for Scotland to set out its own comprehensive view of the terrestrial and marine territories to the 200 nautical mile limit, regardless of its competence, in order to provide a clear indicative spatial vision for Scotland and its waters and a basis for input to a UK national overview? (The RTPI is currently pressing the UK government to adopt the concept of a UK Spatial Development Framework but it may well be that DEFRA will seek no more than a statement of objectives for the UK level, and not any form of plan.)

23. Regional. Whatever the overarching structure, it is likely that regional marine spatial plans will be the definitive plans within the system, the equivalent to development plans in the town and country planning system. In the event of greater integration between licensing/regulatory systems and marine spatial planning, if not an integrated marine consent regime, it is the regional plans which will provide the definitive policy framework. While this concept is relatively clear, the impact of devolution and territorial boundaries on the geography of the recognised regional seas around the UK is significant. Two main situations must be considered: -

• The division of recognised regional seas by the mutual boundaries of the devolved administrations.
• The impact of the restriction of territorial jurisdiction (for most devolved functions) in Scotland to the twelve nautical mile limit.

24. In the first place, it is possible to envisage a division of the Northern North Sea regional sea into two manageable units either side of the border with England for regional MSP purposes. The division of the Irish Sea into its component parts among five administrations, with a very small area within Scottish waters, would, however, not leave a viable entity on ecosystem or spatial planning grounds. One argument might be to extend the Minch regional sea into the Clyde and Solway area but this would lose any of the obvious benefits of the integrated overview which the Irish Sea Pilot Project demonstrated for the Irish Sea itself. In this case, there may need to be a special case for inter-administration collaboration. This has recently been exemplified by the Tweed River Basin planning arrangements.

25. With regard to the twelve mile limit, there would be severe limitation to the extent to which the devolved administration in Scotland could use a marine spatial planning system to secure a sensible perspective on spatial planning issues arising off its coast. On the other hand, some of the most intensive activity, which is also under devolved competence, takes place in inshore waters and it would be a retrograde step for devolution to suggest that the UK government assumes such an important coordinating role within these waters, as part of a possible responsibility for regional sea planning. Provided the political hurdles of negotiating for a greater role, even on an agency basis, can be overcome, the alternative would be for Scotland to take responsibility for the regional sea planning to 200 nmiles. For the devolved administration to be given this responsibility within such a large area extending to the UK continental shelf beyond Scottish territorial waters, with all the implications for oil and gas and renewable energy resources, notwithstanding the current specially extended arrangements for fishing, make this a challenging political option. Nevertheless, it might be achievable in the context of an overall UK marine strategy and MSP negotiated solution.

26. Local. At the local level, there is not only the question of local marine spatial plans but also that of ICZM partnership areas, including their landward areas of interest. If local marine spatial planning activity is based upon the need for integrated preparation and implementation of discretionary powers with regard to programme delivery and advisory functions, and not for subsidiarising regulation and intervention powers, for which a fully accountable, statutorily empowered body would be required, a framework for this can readily be provided within the regional MSP. A system of local marine and coastal strategies which seeks to integrate discretionary programmes may overlap both the marine environment of any new marine spatial planning system and the terrestrial environment of the existing town and country planning system without any difficulty. Control of development would require to remain with the marine and terrestrial planning authorities in either case. Integrated management of activities would, however, be appropriate to local plans and strategies, backed by powers of the marine authority or of ministers where intervention such as statutory consents or local orders is required to enforce policies.

27. Spatial plans require to be underpinned by strategies to give them the direction they need to produce spatial, physical outcomes which reflect the intentions of the plan stakeholders. Development plans under the T and CP system do not have a good reputation in the past for integrating with the strategy objectives of other stakeholders but this has been changing with the introduction of community planning and it is a statutory requirement in the system in England, which is recognised as good practice in Scotland. Accordingly, the strategies which guide a spatial plan may quite readily refer to diverse and overlapping areas (local economic development strategies, local housing strategies, regional transport strategies, river basin management plans etc.). This would apply where there is an ICZM type of strategy for a coastal and inshore water/estuarine area. There can readily be a single strategy which inter-relates the issues for the terrestrial and marine environment which is then reflected in the spatial expression of the strategy in both of the respective spatial plans for the marine and terrestrial areas. At the third AGMACS meeting this role for ICZM was referred to as 'zipping up' the spatial plans.

28. At the present time, under the Scottish Sustainable Marine Environment Initiative ( SSMEI) three pilot MSP projects are being undertaken. It can clearly be seen, in the light of the work of AGMACS and others on marine spatial planning that these projects would fit best within the concept of local marine and coastal plans in an MSP structure. These plans cannot be comprehensive and authoritative spatial planning documents without the wider context, especially of a regional plan and an appointed authority for the purposes of regulation or intervention. What such plans need is

• a strategy for integrated land and sea management of the coastal and inshore water area,
• a scheme by which this informs the local development plan for the landward side, and
• a local marine action plan (or third tier MSP) for the seaward side.

Conclusions and Recommendations

29. Given the uncertainty until the UK government publishes its intentions following the consultation paper on a Marine Bill, it is difficult for the group to find a starting point, other than to consider the principles of marine spatial planning and how they could be applied in Scotland. Any recommendations are inevitably tentative and provisional, but it is essential in the first instance that the key stakeholders in Scotland have as clear an idea as possible of what marine spatial planning is and can do for the future governance of the sea, and what position can be adopted to move the agenda forward. Accordingly the following recommendations are made for the group to consider.

30. AGMACS should confirm its support in principle for a system of marine spatial planning in Scotland, integrated as far as possible with UK and international marine planning systems, consistent with the powers of devolved government in Scotland and with a need to maintain a comprehensive system for the management and control of marine development and activity at all levels of significance from local to international.

31. The concept of a three tier structure of plans and powers should be supported where the national level is based on a collaborative arrangement with the UK government and other devolved administrations, as appropriate, as well as a Scotland-wide overview.

32. Depending on the arrangements for a UKMMO, and the allocation of any functions in addition to those of MSP, a suitable body should be established for Scotland to liaise with the MMO and oversee the regional and local MSP system in Scotland. The body should have powers to make any statutory determinations arising from regulatory or interventionary powers given to it, subject to appeal to or intervention by Scottish Ministers.

33. The scope of the National Planning Framework should be confirmed in the Planning Etc (Scotland) Bill to include the sea and it should be used in Scotland to provide an integrated spatial vision of the future of Scotland's land and waters, including the continental shelf.

34. Inshore waters to the 12 nautical mile limit of Scottish territorial waters should not be regarded as a suitable unit for MSP at a regional level and options to allow the devolved Scottish administration a direct role in marine spatial planning for the full extent of regional seas on the continental shelf off Scotland should be explored with the UK government.

35. The Northern North Sea region should be divided between Scottish and English administration for the purposes of regional MSP, with separate regional plans. In the case of Scotland, one option to be explored is a single regional MSP for Scottish waters. As an exception to either of these models, however, UK wide collaboration should be pursued to secure a suitably integrated regional planning perspective for the Irish Sea.

36. The briefs for the three SSMEIMSP pilot projects should be revisited with a view to updating them in the light of the work of AGMACS on MSP and ICZM and redefining them as local marine action plans.

37. A flexible approach should be taken to the use of local marine action plans to fit the concept of ICZM strategies as well as the needs of local planning for inshore areas. No changes to the scope of the Town and Country Planning system in Scotland should be considered at present, including maintaining the MLWM as the accepted seaward limit of the system. Integrated management in the coastal zone should be promoted through clear guidance on the relationship between local marine action plans and ICZM strategies and Local Development Plans under the T and CP code, as illustrated in paragraphs 26 to 28.

38. Depending on the level of cooperation agreed for the purposes of a UKMMO and for regional sea planning, and on the outcome of the Marine Bill for the streamlining of marine licensing, especially in respect of reserved functions, there should be a further joint initiative with the UK government to establish the scoping of MSP and related regulatory functions at these levels.

39. There should be a successor body to AGMACS to advice on the further development of an MSP system as they become possible.

August 2006

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