Overview
Marine Planning Context
Marine planning and conservation has progressed significantly in recent years with International, European Union, UK, and regional rules, guidance and legislation being introduced to help manage marine areas. Sustainability is at the core of marine planning, which understands the need for sustainable development, and to utilise marine ecosystem services without degrading the marine environment.
Marine planning is the organisation of human activities in the marine environment, in a holistic, ecosystem-based approach (considering all interactions within an ecosystem, humans and society, as part of the ecosystem rather than as a separate considerations). Marine planning takes into consideration all activities, all interactions, and the entire ecosystem and makes an informed and coordinated plan for the most appropriate, sustainable use of marine space to achieve objectives. Doing so means that conflicts, synergies, cumulative impacts can all be identified and considered.
Marine planning is also important to the sustainable use of marine spaces for the consideration of interconnected and cumulative impacts of activities. Activities in one area can potentially affect other marine spaces, or build on impacts from other activities over time. The marine environment has three distinct zones; the seafloor, water column, and sea surface. Although some activities are limited to one of these areas, others utilise two or more. To add to the complexity, multiple uses can occur in the same marine space at the same time. Considering all activities together identifies the synergies making coexistence possible, and identifies the conflicts making sustainable use of the marine environment impossible.
Marine planning is more appropriate for coordinating the sustainable use of marine areas by multiple sectors, rather than looking at each planned activity as individually.
Marine planning in the UK has developed, as a statutory requirement, over years of policy and legislation. The EU introduced the Marine Spatial Planning Directive in 2014 (2014/89/EU), establishing a framework and ensuring that marine planning would be developed across the EU as ‘a process by which the relevant Member State’s authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives’ (2014/89/EU). Marine plans were to be introduced by the deadline of 2021.
Referred to in the UK simply as ‘marine planning‘ the Marine and Coastal Access Act 2009 sets out how marine planning takes shape throughout the UK with the ultimate aim of achieving the UK’s combined vision for ‘clean, healthy, safe, productive and biologically diverse oceans and seas.’ This framework legislation lays out how marine planning is to be undertaken in the UK, delegating marine planning to each devolved administration to undertake separately under this overarching legislation for waters still within the control of the UK (therefore not including Scotland’s inshore region which the Scottish Government has devolved powers to plan for).
The Marine Policy Statement (MPS) offers a framework for all marine plans throughout the UK with UK policy objectives, ensuring a degree of consistency despite separate planning regimes. All marine plans throughout the UK act in accordance with the MPS unless relevant considerations indicate otherwise.
England
In England the Marine Management Organisation (MMO) is responsible for marine planning for England’s inshore and offshore regions. England has approached the task of marine planning through regional planning, with 11 marine regions, including the ‘North West Marine Region’ which covers the Solway. The North West inshore and offshore marine plan areas have been planned for together despite technically being two separate marine areas. The plan provides greater certainty about where activities could best take place and assists users in determining preferred locations. It also promotes efficiency with coexistence of activities (and highlights where coexistence is inappropriate), supports development proposals, and much more.
A full outline of the marine planning process in England is available in the Department for Environment, Food and Rural Affairs document ‘A description of the marine planning system for England’ available here.
Scotland
In Scotland the inshore marine area (0-12 nm) is covered by Scottish legislation, the Marine (Scotland) Act 2010, which allows Scotland to legislate in the inshore region on devolved matters (not on reserved matters such as oil and gas activities). Whereas the offshore area (12-200 nm) falls under the UK Marine and Coastal Access Act 2009. The 2009 Act executively devolves the responsibility for marine planning in Scotland’s offshore region to Scottish Ministers. A marine plan must be prepared for the inshore region (under the 2010 act) and the offshore region (under the 2009 act). Marine Scotland is the directorate of the Scottish Government responsible for marine planning functions and the management of Scotland’s seas. The way Scotland has approached marine planning has been to create one National Marine Plan (NMP) covering both the inshore and offshore regions as well as both reserved and devolved functions, created under the separate pieces of legislation, with policies which (unless otherwise stated) apply to both regions. This approach was agreed between the Scottish and UK governments.
Scotland’s inshore region (0-12nm) has an additional layer of marine planning under the Marine (Scotland) Act 2010, which is to create Regional Marine Plans focussed on smaller marine areas, for more regionally relevant and specific policies to be created. Regional plans are important to consider each regional marine space in a local context. If you consider the differences between, for example the north west of Scotland where oil and gas and shipping activities are vital, compared to the Solway Firth, you can see that a plan covering the entire Scottish coast would not be able to account for the unique needs of each of the 11 marine regions. Regional marine planning is not a requirement but is allowed for by the Marine (Scotland) Act 2010. Marine regions are defined in the Scottish Marine Regions Order 2015, and include the Solway Marine Region, as defined above. Powers for the creation of regional marine plans will be delegated to Regional Marine Planning Partnerships (RMPPs) through Ministerial Direction. RMPPs can be different in terms of their size and composition as they are made up of the stakeholders in the specific region. The delegable functions are listed in s.12 of the Marine (Scotland) Act 2010. Requirements of a RMPP include;
- setting economic, social, marine ecosystem and climate change objectives for the marine plan area
- preparing an assessment of the condition of the area
- preparing a summary of significant pressures and the impact of human activity on the area or region
- keeping under review the physical, environmental, social, cultural and economic characteristics of the region; the purposes for which it is used; its communication, energy and transport systems; and the living resources which it supports.
- stating the contribution of MPAs and other designated areas to the protection and enhancement of the region
- stating policies for sustainable development of the region
- preparing a statement of public participation
- preparation of the marine plan
- publishing a draft of the marine plan for public consultation
- amending the plan
- the duty to keep relevant matters under review, and monitoring responsibilities
- periodic reporting on the implementation of the plan.
- prepare any assessments which may be required, such as a Habitat Regulations Appraisal, Strategic Environmental Assessment, Equalities Impact Assessment, Business and Regulatory Impact Assessment, the new Child Rights and Wellbeing Impact Assessments, and any other relevant information in support of the Regional Marine Plan.
Several of the outputs from the list above are required to be submitted to Scottish Ministers for approval, and the ultimate decision to publish a regional marine plan (and therefore adopt a plan) lies with Scottish Ministers.
The delegate is not a statutory body and has no licensing or consenting powers delegated to it. Once RMPPs have been conferred delegated powers, they also become statutory consultees in marine licensing applications for activities wholly or partially within their marine region. Furthermore, planning authorities are advised to consult RMPPs on fish farming applications and other developments with implications for the marine environment.
So far powers have been delegated to create plans for the Shetland, Clyde and Orkney regions. These plans will conform to the MPS, and Scotland’s NMP, unless there are material considerations to the contrary. The NMP sets out some guidance specifically for regional planners in Chapters 3 and 4 and at the end of each of the sector chapters.
Both national and regional marine plans must set out economic, social, marine ecosystem and climate change objectives for the marine plan area, nationally or regionally. The plans outline how marine resources and activities, including competing activities, can be managed and developed sustainably. Public authorities must take authorisation, enforcement and other relevant decisions in accordance with both national and regional marine plans, unless relevant considerations indicate otherwise.
Cross Border Marine Planning
Of course, the Solway Firth is a cross border water body. For marine planning this means that the Scottish and English marine planning process is undertaken separately through the Scottish and English systems described above. However, there are several mechanisms in place to ensure that, despite the administrative boundary, the two planning processes also work alongside each other and do not contradict or undermine one another. Both planning systems operate underneath the high-level framework of the Marine Policy Statement (MPS), which reiterates the commitment to coordinate marine planning across UK borders. The MPS also outlines high-level requirements of marine plans throughout the UK and UK-wide policy objectives, requiring all plans to have the same framework and core features, such as the ecosystem based approach. Plans should be compatible to ensure maximum benefits, and planning must account for plans in force in the bordering jurisdiction.
There are a variety of mechanisms in place to ensure there is coordination, information and knowledge sharing across UK borders. This ensures administrations are aware of the processes in bordering administrations, such as the requirement for marine planning authorities to give notice of intention to each of the adjacent planning authorities (Schedule 6 Marine and Coastal Access Act 2009).
The MMO and Marine Scotland work closely together throughout the marine planning process to share and learn from each other.
Marine planning policies in the North West Marine Plan for England include a cross border policy (NW-CBC- 1);
“Proposals must consider cross-border impacts throughout the lifetime of the proposed activity. Proposals that impact upon one or more marine plan areas or impact upon terrestrial environments must show evidence of the relevant public authorities (including other countries) being consulted and responses considered.”
Scotland’s NMP also has the general policy; GEN 15 Planning alignment A;
“Marine and terrestrial plans should align to support marine and land-based components required by development and seek to facilitate appropriate access to the shore and sea…Regional Policy: Regional marine plans are required to be compatible with the plans for any adjoining marine region.”
Brexit
The SMILE Project ran from 2018 to July 2021, during a turbulent time for the UK. Not only did the Coronavirus initiate more than a year of restrictions and lockdown orders in the UK, changing the projects ongoing stakeholder engagement methods and significantly impacting every part of the UK’s economy, but Brexit arrangements were ongoing. Brexit preparations were in question for most of the SMILE Project with an exit agreement being reached between the UK and EU in December 2020.
Since the UK’s exit from the EU, a large portion of EU regulations (binding throughout the EU without the need to transpose into domestic legislation) and law transposing EU directives (goals or frameworks which member states are able to transpose into domestic legislation how they please in order to meet the goals of the regulation) have been retained by the UK. This means that on exit from the EU, directly applicable EU law (such as regulations), and domestic law which implements EU obligations have been retained as UK law. This does not mean that all retained legislation will be identical to pre-brexit legislation. As noted by the UK law firm Pinsent Masons, the UK made roughly 80,000 amendments to retained EU law between 2018 and 2020 (Pinsent Masons, 2021). These were predominantly changes to ensure correct and clear application of laws in the UK.
Guidance on how Brexit impacts Scotland’s National Marine Plan is available here.
Image; Southerness from Southerness Lighthouse © G. Reid/ Solway Firth Partnership
