1.2. Policy and Legislation

1.2.1. Overview

  1. This section presents a summary of the information detailed in volume 1, chapter 2 which contains the relevant policy and legislation context for the Array specifically in relation to:
  • international commitments and strategy in relation to climate change, the reduction of Greenhouse Gas (GHG) emissions and the role that renewable energy can play in reducing said emissions, including policy taken from European legislation;
  • legislation and policy relating to climate change, energy and marine planning relevant to both the UK and Scotland;
  • consenting legislation relating to Scottish offshore wind generation, including the consent applications required for the construction, operation and maintenance, and decommissioning of the Array; and
  • other relevant legislation to the Array.

1.2.2. Climate Change Policy and the Need for the Development

                        International commitments

  1. During the 21st Conference of the Parties (COP21) in December 2015, the first ever legally binding global climate deal was adopted by 195 countries. A global action plan was set out in the Paris Agreement (2016) with the aim of limiting global warming to 1.5 °C and halting the increase in global average temperature to below 2 °C above pre-industrial levels, as well as moving globally towards net zero.

                        European legislation and energy legislation

                        EU Exit
  1. After triggering Article 50 of the Lisbon Treaty on 31 January 2020, the UK officially left the European Union (EU) (hereafter referred as ‘EU Exit’). Since then, the UK Government has committed, as a minimum, to abide by international obligations in line with the EU (Withdrawal) Act 2018 and to maintain environmental commitments made, and legislation enacted following the departure of the UK from the EU (HM Government, 2018).
  2. Where specific EU Exit legislation has been implemented to ensure legislative instruments continue to operate in a similar way after EU Exit Day, these are discussed in this section.

                        UK climate change and energy legislation

  1. The following UK legislation and policy is applicable to the Array application. These instruments are summarised briefly below.
  • The Climate Change Act: the UK committed to a net reduction in GHG emissions by 2050 of 80% against the 1990 baseline for carbon dioxide (CO2) and other GHGs (HM Government, 2008a) with secondary legislation passed in 2019 which extended that target to at least 100% against 1990 baseline by 2050, and Scotland committing to a net zero by 2045. This Act 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.
  • UK Nationally Determined Contributions (NDCs): submitted In September 2022 to the United Nations Framework Convention on Climate Change (UNFCCC), covering England, Scotland, Wales and Northern Ireland which includes a commitment for a reduction of at least 68% of UK GHG emissions by 2030 compared to 1990 levels (HM Government, 2022).
  • Energy White Paper: published by the UK Government in 2020, this Paper provided a credible case for tackling the climate issue, with a substantial increase in offshore wind capacity as part of the ten point plan (HM Government, 2020a).
  • Scotland’s Climate Change Plan 2018–2032: published by the Scottish Government in 2020, this Plan listed policies and proposals to contribute to the achievement of net zero targets, and introduced interim targets of at least 56% reduction of GHG by 2020 with Scotland becoming net zero (100% reduction) by 2045 (Scottish Government, 2021).
  • Draft Energy Strategy and Just Transition Plan: published by the Scottish Government in 2023, this Plan is currently under consultation but due to be formally published in summer 2024, and will detail how Scotland will harness offshore wind, and other renewable generation techniques, to become a “renewable powerhouse” (Scottish Government, 2023a).
  • 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.
  • UK Marine Policy Statement: provides 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, 2011).
  • UK Offshore Wind Sector Deal: published by the UK Government in 2019, this report sets out the key commitments and actions from the UK Government to support offshore wind energy development (HM Government, 2019).
                        Scottish policy and legislation
  1. The following policy and legislation documents relate specifically to Scotland and are listed below to provide a brief guide to further legislation at a Scottish Level
  • The Climate Change (Scotland) Act 2009 and Climate Change (Emissions Reduction Targets) (Scotland) Act 2019: introduces binding targets on the Scottish Government to reduce net Scottish GHG emissions by at least 100% by 2045 from 1990 levels;
  • 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 and outlines six priorities around Scotland’s 2050 vision which includes renewable and low carbon energy solutions.
  • National Planning Framework (NPF) 4 (Scottish Government, 2023b): sets out national plans and strategies, such as Just Transition, to provide a vision of how Scotland should evolve in the future. This includes policy on a series of topics, including renewable energy, green belts and climate mitigation, acknowledging Scotland’s offshore renewable energy sources stating that “The interplay between land and sea will be critical, given the scale of offshore renewable energy resources” (Scottish Government, 2023b).
  • Scotland’s Offshore Wind Route Map (Offshore Wind Industry Group (OWIG), 2010): 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 including those to support offshore wind making a significant contribution to the now superseded target of achieving 80% of Scotland’s electricity consumption coming from renewable sources by 2020.
  • Offshore Wind Policy Statement (Scottish Government, 2022a): set 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.
                        Scottish marine planning policy
  1. The Scottish Government has introduced a system of marine planning that covers Scottish offshore waters (12 nm to 200 nm) waters under the MCAA 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.
  • Scottish National Marine Plan:
  • 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 nm to 200 nm); and “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, 2022).
  • Sectoral Marine Plan (SMP) for Offshore Wind Energy (Scottish Government, 2022b): 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.

                        Consenting process and associated legislation

  1. This section provides a summary of the consenting process and associated legislative requirements being followed for the Array.
  2. As the Array is a generating station with a capacity over 50 MW and located in the Scottish offshore waters (12 nm to 200 nm) within the Scottish Renewable Energy Zone (REZ), it will require the following consents, licenses and permissions:
  • a Section 36 consent under the Electricity Act 1989; and
  • a marine licence(s) under the MCAA 2009.
  1. Should additional pre-construction licences be required, these will be discussed and agreed with the relevant consent authority during the pre-construction phase of the Array.
                        Section 36 Consent
  1. Section 36 consent will allow for the installation, operation and maintenance of the following:
  • wind turbines and their supporting structures;
  • wind turbine anchors and mooring systems;
  • OSPs; and
  • subsea cabling including inter-array and interconnector cables.
  1. A comprehensive description of the Array components is provided in volume 1, chapter 3.
                        Marine licensing
  1. The MCAA 2009 applies within the REZ in UK offshore waters (12 nm to 200 nm). Under the MCAA 2009 there is the requirement for a marine licence to be obtained prior to the construction, alteration or improvement of any works or deposit of any object in or over the sea, or on or under the seabed (HM Government, 2009).
  2. Infrastructure forming part of the Array, including the wind turbines and blades, along with the cables and all necessary scour and cable protection, which are located within the REZ, will require a Marine Licence under the MCAA 2009. The OSPs within offshore waters also require a Marine Licence under the MCAA 2009.
                        EIA regulations
  1. Under the EIA process, an EIA Report is required to be prepared and submitted to support applications for a Section 36 consent as part of the EIA process, together with a marine licence or planning permission relating to offshore renewable energy developments if the proposed activities are likely to have a significant effect on the environment due to factors such as the size, nature or location of the proposal. The aim of the EIA Directive is to ensure that any consenting authority gives due consideration to LSE1 on the environment when giving consideration to or giving consent for a proposed project. Under the Electricity Works (EIA) (Scotland) Regulations 2017, an EIA is required for the undertaking of any development to provide a generating station which is likely to have significant effects on the environment. The Array meets these criteria and therefore requires an EIA to be completed.
  2. The Array EIA Report has been undertaken in accordance with the following regulations and therefore, fulfils their requirements:
  • in relation to the Scottish 36 Consent application: the Electricity Works (Environmental Impact Assessment) (Scotland) Regulations 2017; and
  • in relation to the Marine Licence application: The Marine Works (Environmental Impact Assessment) Regulations 2007.

                        Other Consents and Legislation

                        The Habitats and Birds Directives
  1. The Council Directive (92/43/EEC) (the Habitats Directive) was adopted in 1992, offering a means for the EU to meet its obligations under the Bern Convention. The Habitats Directive provides for the conservation of natural habitats and of wild flora and fauna, including offshore waters. This protection is granted through the designation of European sites and European Protected Species (EPS).
  2. 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 in Europe, including their eggs, nests and habitats.
  3. Under the Habitats Regulations, a network of protected sites for birds and certain habitats and species have been established in the UK. Following EU Exit, the network of sites is collectively known as the Natura 2000 network (where the sites are located within Member State countries) and the National Site Network (or UK Site Network[1]) where the sites are located within the UK. These sites are hereafter collectively (whether located in the UK or the EU) referred to as ‘European sites’ and include:
  • Special Areas of Conservation (SACs), candidate SACs or proposed SACs (pSACs);
  • Special Protection Areas (SPAs) or proposed SPAs (pSPAs);
  • Sites of Community Importance (SCIs); and
  • Ramsar sites (where also designated as one of the above).[2]
Habitats Regulations Appraisal
  1. In situations where a plan or project is likely to have a significant effect on a European site, the competent authority (Marine Directorate) is required, under the Habitats Regulations, to carry out an ‘appropriate assessment’. Further information on the Habitats Regulations is provided by the Applicant in the Ossian Array Report to Inform Appropriate Assessment (RIAA) (Ossian OWFL, 2024) which accompanies this Array EIA Report and has not been re-iterated here.
                        European Protected Species licence
  1. EPS are animals and plants (species listed in Annex IV of the Habitats Directive and referred to in the schedules of the Habitats Regulations) that are provided protection under the Habitats Regulations. All cetacean species (whales, dolphins and porpoises) are EPSs. If an activity is likely to cause disturbance or injury to an EPS, a licence is required to legally undertake the activity.
                        Energy Act 2004
  • Safety Zones:

–           safety zones are intended to assure the safety of renewable energy installations, or other installations in the vicinity, during the different phases of a project. As a result, they may exclude non-project vessels from navigating through a designated area for a designated period.

  • Decommissioning:

–           sections 105 to 114 of the Energy Act (as amended by the Energy Act 2008 and the Scotland Act 2016) contain statutory requirements relating to the decommissioning of OREIs and their respective electricity lines; and

–           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 (Scottish Government, 2022c).

                        Marine Strategy Framework Directive
  1. The Marine Strategy Framework Directive (MSFD) requires Member States to prepare national strategies to manage their seas to achieve Good Environmental Status (GES) by 2020.
                        Marine Protected Areas (MPAs)
  1. The Marine (Scotland) Act 2010 and the MCAA 2009 introduced arrangements to aid the management of Nature Conservation (NC) MPAs. Under section 126 of the MCAA 2009 and section 83 of the Marine (Scotland) Act 2010, Marine Directorate - Licensing Operations Team (MD-LOT), as the public authority, are obligated to consider if an activity is capable of affecting (other than insignificantly) a protected feature of a NC MPA, or any ecological or geomorphological process, on which the conservation of any protected feature of a NC MPA is dependent.
                        Pre-Application Consultation (PAC)
  1. Where an activity is planned within the Scottish territorial waters, the Marine Licensing (Pre-application Consultation (PAC)) (Scotland) Regulations 2013 apply. There is no provision for PAC in the MCAA 2009, so these requirements are not applicable in respect of relevant applications in the Scottish Offshore Region. Consultation during the pre-application stage for Section 36 consent applications is not a statutory requirement, however, the principles of the PAC Regulations will be followed for all offshore components of the Array. The stakeholder engagement and public consultation carried out in relation to the Array is detailed in volume 1, chapter 5.