Appendix 4 Policy and Legislation

Appendix 4
Policy and Legislation

4.1.        Introduction

  1. This appendix presents a summary of the policy and legislative context for the Array, in relation to:
  • international obligations and policy, including European legislation, relating to climate change, greenhouse gas (GHG) emissions reduction, 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 Array; and
  • other legislation relevant to the Array.
  1. Depending on the location, nature and scale of a proposed development, the consents required vary, and are influenced by the different legislative requirements within Scottish offshore waters (12 nm to 200 nm). The consents and legislation applicable to the Array are presented in section 2.3.
  2. It is imperative that Scotland and the United Kingdom (UK) expands its capability in offshore renewables, carbon capture and storage, and hydrogen capabilities to facilitate decarbonisation of the energy system and a just transition to net zero by 2045, Scotland (Scottish Government, 2022a). This provision of new renewable energy capacity will aid the Scottish Government in meeting legally binding national and international commitments on climate change.
  3. At a national level, it is noted that offshore wind generation is capable of providing a significant contribution towards the commitments noted above, with the aim of quadrupling UK offshore wind capacity by 2030 as detailed in the latest Energy White Paper (HM Government, 2020a).

4.2.        Climate Change Policy and the Need for the Development

4.2.1      International Commitments

  1. The Kyoto Protocol commits state parties to reduce GHG emissions via internationally binding emission reduction targets. The protocol, of which the UK is a signatory, came into effect in 2005. The Climate Change Act 2008 incorporates the commitments of the Kyoto Protocol, requiring the net UK carbon account for the year 2050 to be 80% lower than the 1990 baseline.
  2. The Paris climate conference (COP21) was held in December 2015, at which the first universal, legally binding global climate deal was adopted by 195 countries, termed the Paris Agreement (United Nations Framework Convention on Climate Change (UNFCCC), 2016). This agreement sets out a global action plan towards climate neutrality, which aims to limit the increase in global average temperature to below 2°C above pre-industrial levels, and to make efforts to limit global warming to 1.5°C.

4.2.2      European Parliament and Council Directives

European Union Exit

  1. The UK formally left the European Union (EU) on 31 January 2020, after triggering Article 50 of the Lisbon Treaty. However, the UK continues to be bound to environmental targets set in EU environment law, even where the attainment of the target is envisaged for a later date. Existing EU renewable energy targets for the UK, including the EU Renewable Energy Directive 2009/28/EC, remain applicable to UK law. However, it is unlikely that the transposition of any new EU legislation or updates to existing directives into UK law will occur following the end of the transition period (31 December 2020).

2030 targets and the European Union Renewables Energy Directive

  1. The European Commission (EC) proposed the 2030 Energy Strategy framework in October 2014, which builds upon the previously proposed 2020 climate and energy framework. The following climate and energy targets have been proposed by the EC to be achieved by 2030 (European Commission, 2020a):
  • 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. In 2018, the Revised Renewable Energy Directive (RRED) (2018/2001/EU) entered into force. The aim of the RRED is to help the EU to meet its emissions reduction commitments under the Paris Agreement (2016) and remain a global leader in renewable energy. The following targets are set in the RRED:
  • 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.

2050 low carbon economy

  1. The EU aims to be climate-neutral by 2050, resulting in an economy with net zero GHG emissions. This objective is central to the European Green Deal and aligns with the EU’s commitment to global climate action under the Paris Agreement (European Commission, 2020b).

4.2.3      UK Climate Change and Energy Legislation

The Climate Change Act 2008

  1. The UK has committed to a net reduction in GHG emissions by 2050 of 80% against the 1990 baseline under the Climate Change Act 2008. The Climate Change Act 2008 (2050 Target Amendment) Order 2019 was passed in June 2019, within which the target was extended to at least 100% net reduction in GHG emissions against 1990 baseline by 2050, with Scotland committing to a net zero by 2045. The Committee on Climate Change (CCC) was also established through the Climate Change Act 2008. The CCC advises the UK Government on emissions targets, and reports to Parliament regarding progress made in reduction of GHG emissions. The CCC produces carbon budgets for the UK which present a progressive limitation on the total quantity of GHG emissions to be emitted over a five-year period. The CCC has produced six five-yearly carbon budgets, which cover the period 2008 to 2037. 
  2. Although the UK has met the targets set in the first two carbon budgets, with GHG emissions being lower between 2008 and 2017 (BEIS, 2022d), 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. Subsequently, two Carbon Plans were produced by the UK Government (in 2009 and then in 2011) which set how the UK sought to achieve decarbonisation within the energy policy framework and provided a vision for 2050. The most recent plan published in 2011 notes the importance of offshore wind generation (HM Government, 2011a).
  4. In October 2021, the UK Government put forward their Net Zero Strategy: Build Back Greener (pursuant to Section 14 of the Climate Change Act 2008) (HM Government, 2021) which builds upon the Carbon Plans and sets out the strategy the UK plans to put in place over the next three decades to achieve net zero across all sectors by 2050. This strategy paper also sets out policies and proposals to keep the UK on track to meet the future carbon budgets between 2023 and 2037. With regard to the energy sector, the strategy aims to deliver decarbonised power by 2035, with all electricity required to come from low carbon sources. It is proposed that this will be composed predominantly of wind and solar generation, with the aim of delivering 40 GW of offshore wind by 2030, including 1 GW of floating offshore wind (HM Government, 2021).
  5. It should be noted that the UK Government are reviewing and updating the Net Zero Strategy to provide further information as to how the policies contained within the Strategy will achieve climate targets, following a successful legal challenge by Friends of the Earth, ClientEarth and Good Law Project in July 2022 (ClientEarth, 2022). The High Court ruled that these updates must be made by April 2023 and will be subject to review by Members of Parliament (MPs) and the CCC (The Guardian, 2022; ClientEarth, 2022).

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. Provisions for Electricity Market Reform (EMR) are included within the Energy Act, setting out the framework for Contracts for Difference (CfD), which replaced Renewables Obligation Certificates (ROCs), to provide stable financial incentives, and 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). CfDs aim to reduce exposure to volatile wholesale prices and protect the consumer from paying for higher generation support costs when electricity prices are high (BEIS, 2022e), which in turn, gives greater certainty and stability of revenues to electricity generators. Therefore, CfDs incentivise development which ultimately supports development of renewable energy in the UK.

UK Marine Policy Statement

  1. In March 2011, the UK wide Marine Policy Statement (MPS) was published, under Section 44 of the Marine and Coastal Access Act (MCAA) 2009. The MPS provides a framework for marine spatial planning and ensures sustainable use of marine resources, and is therefore particularly useful for the preparation of Marine Plans (HM Government, 2011b). Scottish Ministers, the Secretary of State for the Environment, Food and Rural Affairs, Welsh Ministers and the Department of Agriculture, Environment and Rural Affairs (DAERA) in Northern Ireland jointly adopted the MPS. The MPS requires all public authorities to follow the relevant marine policy statement when examining and determining applications for all energy infrastructure, 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”, noting that offshore wind is the most developed offshore renewable energy technology, and it therefore has the biggest potential to improve the UK’s medium term energy security. The MPS states that significant broad-scale environmental benefits could be achieved via renewable energy through GHG emission mitigation.
  2. All public authorities which take authority over, or enforce, decisions affecting or potentially affecting the UK marine area, must do so in accordance with the MPS and the relevant Marine Plans, as per the MCAA 2009. Marine Plans allow decisions on activities in the UK marine area to be plan-led, once these are in place (HM Government, 2011b).
  3. Cumulative impacts of the proposals with other projects and activities must be considered by decision makers when considering any potential benefits and adverse effects of the proposals. The MPS also notes for any project, the level of assessment undertaken should be proportionate to the scale and potential impact of the project, as well as the sensitivity of the environment, and in accordance with the EIA Directive (Directive 85/337/EEC), where applicable.

UK Offshore Wind Sector Deal

  1. The Offshore Wind Sector Deal, which sets the key commitments and actions from the UK Government to support offshore wind energy development, was published in 2019 by the UK Government (HM Government, 2019). It states that “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). Key commitments for ideas, people, infrastructure, business environment and places are covered within the Sector Deal. The Sector Deal investigates the following topics, with regard to infrastructure:
  • 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. A policy paper which reflected on the status of the offshore wind industry one year after the publication of the Offshore Wind Sector Deal, was published by the UK Government in 2020 (HM Government, 2020b). The UK Government and the offshore wind energy sector have made progress on delivering the commitments set out within the Sector Deal since its launch in 2019, including for example:
  • the development and establishment of Offshore Wind Growth Partnership;
  • the development of Regional Clusters; and
  • the appointment of a Diversity Champion.

British Energy Security Statement

  1. In April 2022, the UK Government published the British Energy Security Strategy in response to global rises in energy costs. Within this Strategy, the importance of expanding the capacity of renewable energy is noted, in a bid to reduce dependence on other countries for energy supply. With regard to offshore wind, the Strategy sets out the ambition “to deliver up to 50 GW by 2030, including up to 5 GW of innovative floating wind” (HM Government, 2022e), an increase of 10 GW of offshore wind and 4 GW of floating offshore wind energy in comparison to the Net Zero Strategy: Build Back Greener policy set out in 2021 (HM Government, 2021). The British Energy Security Strategy also sets out steps that the UK Government aims to take to reduce the time taken to develop and deploy offshore wind projects (HM Government, 2022a).

UK Energy Security Bill

  1. Following publication of the British Energy Security Strategy, the Energy Security Bill was introduced to UK Parliament in July 2022. The Energy Security Bill builds upon the commitments set out within the British Energy Security Strategy, with the aim of delivering “a cleaner, more affordable and more secure energy system for the long term” (HM Government, 2022c). As part of this Bill, the UK Government is seeking legislation to deliver an Offshore Wind Environmental Improvement Package (OWEIP) which aims to “support the accelerated deployment of offshore wind…whilst ensuring [the UK Government] continue to meet [their] environmental commitments” (HM Government, 2022d). The Energy Security Bill is currently undergoing review in the House of Lords, where the Committee Stage concluded on 16 January 2023. At the time of writing, the Report stage is yet to be scheduled (UK Parliament, 2023).

4.2.4      Scottish Policy and Legislation

  1. The Scottish Government are bound by the Climate Change (Scotland) Act 2009 and Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 to reduce net Scottish GHG emissions by at least 100% by 2045 from 1990 levels. The following interim targets have been set, of at least:
  • 56% reduction by 2020;
  • 75% reduction by 2030; and
  • 90% reduction by 2040 (HM Government, 2009).
  1. This Act aims to contribute to the global effort to deliver on the Paris Agreement (2016) (paragraph 79).

The Electricity Generation Policy Statement

  1. The methods and sources of Scotland’s electricity generation and changes needed to meet the Scottish Government targets are examined within the Electricity Generation Policy Statement (EGPS) 2013 (Scottish Government, 2013b). The key principles of EGPS are that Scotland’s mix of electricity generation should:
  • deliver a secure source of electricity supply at an affordable cost to consumers; and
  • be largely decarbonised by 2030, which achieves the greatest possible economic benefit and competitive advantage for Scotland, including opportunities for community ownership and community benefits.
  1. The EGPS states that “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 needed to meet the ambitious targets set by the Scottish Government. The following targets are stated within the EGPS:
  • 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.

The Scottish Energy Strategy

  1. The Scottish Government’s vision for the future energy system in Scotland is presented in the Scottish Energy Strategy: The Future of Energy in Scotland (Scottish Government, 2017). Six priorities around Scotland’s 2050 vision are set out within this strategy, including renewable and low carbon energy solutions, and also sets the following targets:
  • for 50% of the energy for Scotland’s heat, transport and electricity consumption to be supplied from renewable sources; and
  • an increase of 30% in the productivity of energy use across the Scottish economy, by 2030.
  1. The success of Scottish offshore wind projects in recent CfD auctions and the potential for future development, particularly within deeper waters, are both highlighted within this strategy.
  2. The Scottish Government has published a Position Statement for the Scottish Energy Strategy in March 2021 (Scottish Government, 2021a), which presents an overview of the key priorities for the short to medium term to ensure green economic recovery. This report sets out key priorities for energy (including renewables) and Scotland’s energy strategy, and has also been covered in the Scotland’s National Strategy for Economic Transformation (Scottish Government, 2022f), which highlights the importance of offshore wind.

National Planning Framework 3

  1. The Third National Planning Framework (NPF) was developed by the Scottish Government in 2014 which sets out the key visions for Scotland’s development, in relation to renewable energy and offshore wind energy (Scottish Government, 2014a).
  2. The Scottish Planning Policy (SPP) (Scottish Government, 2014b) is considered alongside the NPF 3 which presents national plans and strategies to provide a vision Scotland’s evolution in the future within a number of development areas, including renewable energy, and also acknowledges Scotland’s offshore renewable energy sources.
  3. The SPP also notes the significant opportunities that offshore renewable energy generation presents in the achievement of Scottish Government targets. The planning system does not regulate offshore development, however, it should be noted that development plans must consider the needs of the offshore renewable energy generation industry with regard to infrastructure and grid connection.

National Planning Framework 4

  1. NPF4 sets out a national and strategic approach to planning and development in support of achieving net zero in Scotland by 2045 (Scottish Government, 2022g). Public consultation on the initial draft NPF4 closed on 31 March 2022. The Revised Draft NPF4 was published on the 8 November 2022, approved by Scottish Parliament on the 11 January 2023, and was formally adopted on the 13 February 2023.
  2. The Scottish Government (2022g) identifies net zero energy solutions as a key contributor to net zero emissions by 2045 and includes National Planning Policies to achieve this aim, such as a Climate Emergency Policy (1) which encourages and promotes development that addresses the global climate emergency and a Green Energy Policy (11) which encourages and promotes all forms of renewable energy development both onshore and offshore.

Scotland’s Offshore Wind Route Map

  1. In 2010, the Offshore Wind Industry Group (OWIG) published Scotland’s Offshore Wind Route Map. The OWIG consists of industry, government, and public sector bodies. Scotland’s Offshore Wind Route Map presents the opportunities, challenges and recommendations to OWIG to ensure that a strong and sustainable offshore wind industry in Scotland can be built (OWIG, 2010). Scotland has the manufacturing, supply chain, job creation and training opportunities which present the potential and ambition for sustainable economic growth. The route map was last reviewed in 2013, which concluded that offshore renewables will play a key role in meeting both the 2020 targets and 2030 decarbonisation targets, especially once the Round 3 and the Scottish territorial waters round developments are fully operational (OWIG, 2013).

Offshore Wind Policy Statement

  1. The Offshore Wind Energy Policy Statement (OWEPS) (Scottish Government, 2020a) highlights the importance of the role of the offshore wind technology in meeting net zero commitments by 2045, as required by The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019, while maximising the economic benefit of this industry. The aims outlined in Scotland’s Energy Strategy (Scottish Government, 2017) and the Offshore Wind Sector Deal published in 2019 (HM Government, 2019), which details specific actions to be undertaken by governments and industry to promote and grow the sector, are built upon by the OWEPS. The implementation of the OWEPS is supported by Scotland’s Energy Strategy which identifies suitable offshore wind farm development areas.

Draft Energy Strategy and Just Transition Plan

  1. The Scottish Government published the Draft Energy Strategy and Just Transition Plan in January 2023. This draft strategy sets out “clear policy positions and a route map of actions with a focus out to 2030 that the Scottish Government will take and the changes that the UK Government must deliver”, with the vision that by 2045, “Scotland will have a flourishing, climate friendly energy system that delivers affordable, resilient and clean energy supplies for Scotland’s households, communities and business” (Scottish Government, 2023). This document sets out four policy areas:
  • A Just Transition;
  • Energy Supplies – Scaling up renewable energy;
  • Energy Supplies – Reducing our reliance on fossil fuels; and
  • Energy demand for heat, transport, industry and agriculture.
  1. Regarding offshore wind, the consultation on this document seeks to gather views on whether the Scottish Government should increase ambitions for offshore wind deployment, as set out in the Offshore Wind Policy Statement, and what the level of ambition should be for 2030 and 2045 (Scottish Government, 2023). Consultation on this Draft Energy Strategy and Just Transition Plan is open until 4 April 2023, with anticipated publication of the final version of said document in late 2023.

4.2.5      Scottish Marine Planning Policy

  1. The marine planning system in Scotland covers Scottish offshore waters (12 nm to 200 nm) under the MCAA 2009. This Act is used to inform decisions which are made in accordance with the appropriate Marine Plans, which are summarised below.

Scottish National Marine Plan

  1. In 2015, the Scottish National Marine Plan (NMP) was adopted, which covers both the management of Scottish territorial waters (within 12 nm) and offshore waters (12 nm 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). Draft Sectoral Marine Plans (SMP) for offshore wind, wave and tidal energy were published by the Scottish Government in 2013 (Scottish Government, 2013c), aiming to identify potential future options for commercial scale offshore energy developments. The Scottish Government did not formally adopt these plans, however, the draft options were included in the NMP (Marine Scotland, 2020). The EU Directive 2014/89/EU has been considered within the NMP, which introduces a marine spatial planning framework with the key aim of promoting the sustainable development of marine areas and the sustainable use of marine resources. Several minimum requirements are set out, 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 support the above strategic objectives, and sectoral objectives (e.g. offshore wind and marine renewable energy) provide the context for NMP’s strategic objectives and general policies. Ambitions for Scotland’s renewables and clean electricity to go beyond the 2020 targets are set out within the NMP (Marine Scotland, 2015).
  2. The NMP addresses the potential for interactions between renewable energy development and other marine users, and recognises the investment required for significant development of the offshore wind energy sector, which is of particular relevance to the Array.

Regional Marine Plans

  1. Scottish Marine Regions (SMRs) cover sea areas extending out to 12 nm. There are currently 11 SMRs. At a local level, Regional Marine Plans (RMPs) are being developed within SMRs by Marine Planning Partnerships, which will take in to account local circumstances and smaller ecosystem units. To ensure consistency with national objectives and priorities, these must be developed in accordance with the NMP and MPS, unless relevant considerations indicate otherwise, and are subject to adoption by Scottish Ministers (Marine Scotland, 2015).
  2. The Array lies in Scottish offshore waters (12 nm to 200 nm) and, therefore, does not overlap any SMRs. There is no RMP in place for the region at the time of writing.

Sectoral Marine Plan for Offshore Wind Energy

  1. The first SMP for Offshore Wind Energy was adopted in 2011 (Marine Scotland, 2011a), following which, draft wind, wave and tidal SMPs were produced in 2013 (Marine Scotland, 2013).
  2. The SMP for Offshore Wind Energy (Scottish Government, 2020b) builds upon the work undertaken in the 2011 and 2013 plans, and incorporates recent technological, policy, regulatory and market development to create a new strategic planning process. The aim of the SMP (Scottish Government, 2020b) is to provide a spatial strategy to inform the seabed leasing process for commercial offshore wind energy in Scottish waters which can contribute to achieving Scottish and UK energy and climate change policy objectives and targets. This spatial strategy aims to:
  • minimise the potential adverse effects on other marine users, economic sectors and the environment resulting from further commercial scale offshore wind development; and
  • maximise opportunities for economic development, investment and employment in Scotland, through identification of new opportunities for commercial scale offshore wind development, including deeper water wind technologies.
  1. Fifteen final Plan Options (POs), split across four regions, were identified in the SMP for Offshore Wind Energy, which can generate several GWs of renewable energy, with a national limit of 10 GW generating capacity. Strategic Environmental Assessment (SEA), Habitats Regulations Appraisal (HRA) and socio-economic assessments have been carried out for each of the POs, with summary reports available for these.
  2. The SMP noted that there was potential for regional cumulative impacts on bird populations, benthic habitats, cetaceans, navigational safety, seascape/landscape, and commercial fisheries, however, the level of impacts will vary depending upon the POs developed. The Plan provides a number of mitigation measures with regard to potential impacts at various scales (Scottish Government, 2020b).
  3. As discussed in section 1 of this Scoping Report, the Applicant was awarded the Option to Lease Agreement to develop Ossian within the E1 PO area. Therefore, the Array falls under the SMP and was considered as an option proposed within the 15 final PO areas, and within the SEA, HRA and socio-economic assessments. It should be noted that the SMP (and accompanying documents) will be updated as part of an iterative review process, particularly to take in to account the response to and awards of ScotWind leases. The SMP post adoption statement notes that the iterative plan review will include an Annual Forum with a call for evidence on at least an annual basis, and a two year review cycle (Scottish Government, 2020c). The Applicant will ensure that updates to the SMP are monitored throughout the Array pre-application phase and included in the Array EIA Report, as appropriate.
  4. In November 2022, the Sectoral Marine Plan – Roadmap of Actions was published, which sought to identify the roadmap of research which is required to address the evidence gaps noted in the SMP and its accompanying HRA with regard to impacts to seabird populations. This research will provide an evidence base on which to re-assess the impacts to seabird populations in the POs with highest ornithological constraints, as part of the iterative plan review process. The Theory of Change approach was used to identify actions required to meet this aim, and stakeholders were consulted on the key outputs to deliver these. The actions have been prioritised and used to identify a series of projects which could be implemented to gain the insight and evidence required to conclude if the risk to seabird populations in these POs could be reduced to an acceptable level (Scottish Government, 2022h).
  5. In this report, the E1 PO area (in which the Array is located) was highlighted as requiring strategic regional surveys and assessments in order to assess uncertainties regarding the potential cumulative impacts on seabirds, particularly during the non-breeding season. As noted in section 3 of this Scoping Report, the Applicant has begun regional ornithological surveys as per the SMP, which aims to address the ornithological constraints through reducing uncertainty regarding species abundance and distributions during the breeding and non-breeding seasons.
  6. Consenting bodies can use the SMP as a guide for decision making on licence and consent applications but does not predetermine the decision making processes. The SMP aligns with the objectives and principles set out within Scotland’s NMP (Marine Scotland, 2015) and the UK MPS (HM Government, 2011b). As part of the recent ScotWind Offshore Wind Leasing Round, 20 potential development sites have been awarded, with a total generating capacity of up to 27.6 GW (Crown Estate Scotland, 2022b).


4.3.        Crown Estate Scotland Option to Lease agreement

  1. The Option to Lease Agreement issued to Ossian Offshore Wind Farm Limited (OWFL) by Crown Estate Scotland (CES) following the conclusion of the ScotWind Leasing Round permits developers to undertake site investigations without the need for a Small Works License within the site boundary for the purposes of project development.
  2. the Applicant holds quarterly meetings with CES to provide an update on project development, including programme, key risks, and work undertaken to date. Progress is reported against key milestones set out within the Option to Lease Agreement.
  3. The Option to Lease Agreement has a ten year period, at which point developers are required to progress to a full lease.

4.4.        Planning Legislation

  1. The Array is a generating station with a capacity of greater than 50 MW, therefore, the following key consents, licences and permissions are required:
  • a Section 36 consent under the Electricity Act 1989; and
  • a marine licence(s) under the MCAA 2009.
  1. The following sections describe the consents, licences and permissions noted above. Discussion with relevant consenting authorities will be undertaken during the pre-construction phase of the Array if additional pre-construction licences are required.

4.4.1      Section 36 Consent

  1. The Array is an offshore generating station which is greater than 50 MW, located in Scottish offshore waters (between 12 nm and up to 200 nm offshore) and within the Scottish Renewable Energy Zone (REZ). Therefore, consent under Section 36 of the Electricity Act 1989 is required, which will allow for the installation, operation and maintenance of wind turbines and inter-array cables associated with the Array.

4.4.2      Marine Licence

  1. The MCAA 2009 applies within the UK offshore waters (between 12 nm and up to 200 nm offshore) REZ. It gives the Scottish Ministers executively devolved powers in the offshore marine region (12 nm to 200 nm). There is the requirement for a marine licence to be obtained under the MCAA 2009 (as amended) prior to the construction, alteration or improvement of any works, deposit of any substance or object in or over the sea, or on or under the seabed, or to carry out activities such as dredging.
  2. The Array will require a marine licence(s) under the MCAA 2009 regulations for the construction works and associated activities, deposit of anchors and moorings in the sea/on the seabed associated with the floating wind turbine generators, and potential deposit of cable protection on the seabed for the inter-array cables and interconnectors.
  3. A note may be issued to the Applicant if applications are made for both a marine licence under the MCAA 2009 and consent under Section 36 of the Electricity Act 1989, and where the Scottish Ministers are the determining authority, stating that both applications will be subject to the same administrative procedure. This will ensure the consideration of the two related applications will occur at the same time.


4.5.        Environmental Impact Assessment Regulations

4.5.1      Overview

  1. The EIA Directive (2011/92/EU, as amended by Directive 2014/52/EU) has traditionally directed the assessment of effects on certain public and private projects on the environment in Scotland. However, Scotland has no direct obligations under this Directive following the UK’s exit from the EU. Through The Marine Environment (EU Exit) (Scotland) (Amendment) Regulations 2019, which came into force on EU Exit Day (31 January 2020), the requirements established under the Directive (as transposed into UK law) continue to be applicable, subject to only minor changes. Therefore, the Directive continues to set the framework for the EIA process in Scotland and is relevant to any application in Scottish waters for a Section 36 consent or a marine licence. An EIA Report is required to be prepared and submitted to support Section 36 consent or a marine licence application if the proposed project is likely to have a significant effect on the environment due to factors such as its size, nature or location.
  2. The Array EIA Report 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; and
  • in respect to a marine licence(s) application: The Marine Works (Environmental Impact Assessment)  Regulations 2007.
  1. Schedule 3 of the 2007 EIA Regulations specifies the requirements of the information to be included in environmental impact assessment reports with Apx Table 4.1   Open ▸ below outlining where consideration of the requirements of Schedule 3 will be made within the Array EIA Report.

4.5.2      Pre-Application Consultation

  1. The Marine Licensing (Pre-application Consultation) (Scotland) Regulations 2013 (hereafter referred to as the PAC Regulations) apply where activity is planned within Scottish territorial waters. The MCAA 2009 does not contain any provisions for PAC, therefore, these requirements do not apply to applications within Scottish offshore waters. Therefore, there are no statutory requirements for PAC for the Array Section 36 consent application as this is located in Scottish offshore waters. However, the principles of the PAC Regulations will be followed for the Array as these Regulations are considered good practice for undertaking public engagement.
  2. Where appropriate to do so and if sufficient information on the grid connection and onshore elements of the project are available, public consultation will be carried out for the onshore and offshore elements at the same events, in order to give third parties a full understanding of the whole project.
  3. According to the PAC Regulations, applicants for a ‘prescribed class’ of activity are required to notify the Maritime and Coastguard Agency (MCA), Northern Lighthouse Board (NLB), NatureScot, and any delegate for a relevant marine region. The Applicant proposes to hold at least one pre-application event, for example, in the form of a public exhibition, where these bodies, other stakeholders and members of the public may engage with and provide comments to the Applicant. Notices will be published in a local newspaper(s) containing a description of the activity, detail of where further information may be obtained, the date and place of the event, and how/when comments should be submitted to the Applicant. Additional notification may be provided via press releases, mail drops, online newspapers, social media, e-mail distribution lists, and/or via the Ossian website. The outcomes of the public exhibition will be reported within the Array EIA Report.
  4. Section 4.3.4 of this Scoping Report provides further information on the proposed consultation for the Array. Focused post-Scoping consultation will be undertaken following the process set out in the draft dSEP (Appendix 1).


Apx Table 4.1:
 Requirements Under The Marine Works (Environmental Impact Assessment) Regulations 2007 and Where These are Proposed to be Addressed in the Array EIA Report

Apx Table 4.1   Open ▸ :  Requirements Under The Marine Works (Environmental Impact Assessment) Regulations 2007 and Where These are Proposed to be Addressed in the Array EIA Report


4.6.        The Habitats and Bird Directive and Associated Regulations

  1. The Council Directive 92/43/EEC (the Habitats Directive) was adopted in 1992 to provide a means for the EU to meet its obligations under the Bern Convention. The Directive aims to maintain or restore natural habitats and wild species listed on the Annexes at a favourable conservation status. This protection was granted through the designation of European Sites (Special Areas of Conservation (SAC)) and measures to protect European Protected Species (EPS). European Directive (2009/147/EC) on the conservation of wild birds (The Birds Directive) provides protection to rare and vulnerable species listed under Annex I of the Directive, and regularly occurring migratory species, through the identification and designation of Special Protection Areas (SPAs).  The UK has no direct obligations under the Habitats Directive following the UK’s Exit from the EU, however, The Conservation (Natural Habitats, &c.) (EU Exit) (Scotland) (Amendment) Regulations 2019 (effective from 1 January 2021) provides that Scotland has legal obligations to continue to maintain the standards required by the EU Habitats and Wild Birds Directives, subject to only minor (non-material) changes. Therefore, the Habitats and Birds Directive continue to provide the framework for the conservation and management of rare and vulnerable habitats and species and wild birds within Europe and the UK.
  2. Various regulations transpose these Directives into Scottish Law. Those of relevance to the Array include:
  • the Conservation of Habitats and Species Regulations 2017 (which apply to the Section 36 applications within the Scottish Offshore region (12 nm to 200 nm)); 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. Where a plan or project that is not directly connected with, or necessary to, the management of a European site, but likely to have a significant effect thereon, either individually or in combination with other plans or projects, the Habitat Regulations require that the plan or project is subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. Marine Scotland are required to consider whether the Array is likely to have significant effects on the conservation objectives of the sites considered in the HRA. If Likely Significant Effects (LSEs) (as defined by the Habitats Regulations) cannot be excluded at the screening stage, and in the absence of mitigation measures, the competent authority must carry out an ‘Appropriate Assessment’ of the implication of the plan or project before consent may be given for the proposed project.
  3. The HRA process is aligned with EC guidance documents ‘Assessment of plans and projects significantly affecting Natura 2000 sites’ (European Commission, 2001) and ‘Managing Natura 2000 sites: The Provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC’ (European Commission, 2019), and is a multi-stage process. A step-wise procedure is established within Article 6 which is as follows:
  • the first part of this procedure, governed by the first sentence of Article 6(3), 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;
  • 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
  • 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) (please see further information below).
  1. The Array LSE screening assessment has been prepared and submitted for consideration alongside this Scoping Report.
  2. This step-wise procedure aims to determine LSEs and assess the potential of implications associated with the Array infrastructure and activities to adversely affect the integrity of a European site or sites in accordance with Article 6(3) of the Habitats Directive. The step-wise procedure has a derogation procedure under Article 6(4) where 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. Derogation is available to the relevant competent authorities following three tests which are to be met sequentially:
  • there are no feasible alternative solutions to the project which have a lesser impact;
  • there are “imperative reasons of overriding public interest” (IROPI) for the project to proceed; and
  • compensatory measures are secured to ensure that the overall coherence of the network of European sites is maintained.

4.7.        European Protected Species Licensing

  1. Species listed in Annex IV of the Habitats Directive, including all cetacean species (whales, dolphins and porpoise), are classed as EPS. Under The Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) and the Conservation of Offshore Marine Habitats and Species Regulations 2017, these animals and plants are given protection. A licence is required to undertake any activity which is likely to cause disturbance or injury to an EPS, to ensure the activity is undertaken legally.
  2. Subsea noise disturbance to marine mammals due to piling construction activities is one such activity which can be licenced under EPS licences. NatureScot or the Scottish Ministers grant EPS licences, depending on the reason for the licence application. The grant of EPS licences is separate to the Section 36 and marine licence application process, however, Marine Scotland may consider these applications in parallel to reduce timelines. It is anticipated that any EPS licence applications required for the Array activities would be submitted post-consent.
  3. Additional pre-construction licences will be discussed and agreed with the relevant consenting authority, should these be required, during the pre-construction phase of the Array. An EPS risk assessment will accompany any EPS licence applications submitted.

4.8.        Decommissioning

  1. Statutory requirements in relation to the decommissioning of Offshore Renewable Energy Installations (OREIs) and their related electricity lines are set out in 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). Scottish Ministers may require the undertaking of a costed Decommissioning Programme for submission to and approval by Scottish Ministers by the individual(s) responsible for installations or lines in Scottish Waters or in a Scottish part of a REZ (Marine Scotland, 2018).
  2. The Scottish Ministers are responsible for procuring Decommissioning Programmes for proposals to construct OREIs (see section 62 of the Scotland Act 2016, which transfers powers to Scottish Ministers under the Energy Act Part II chapter 2). Marine Scotland sought to establish robust policies and procedures covering decommissioning, including securities, for offshore wind, wave and tidal projects through the commencement of consultation on future plans for decommissioning for OREIs in Scottish waters in November 2019. This consultation closed on 18 March 2020.
  3. Following this consultation, in July 2022, the Decommissioning of Offshore Renewable Energy Installations in Scottish waters or in the Scottish part of the Renewable Energy Zone under The Energy Act 2004: Guidance notes for industry (in Scotland) was published. This guidance document sets out the policy and legislative framework, decommissioning requirements in Scotland, requirements for Decommissioning Programmes, environmental and safety considerations, and financial considerations (Scottish Government, 2022i).
  4. The power to determine specific approaches to decommissioning also sits with Scottish Ministers, where the form, timing and size of financial securities are stipulated. Decommissioning Programmes are expected to include decommissioning standards, financial security, residual liability, and industry cooperation and collaboration.
  5. The Decommissioning of Offshore Renewable Energy Installations in Scottish waters or in the Scottish part of the Renewable Energy Zone under The Energy Act 2004: Guidance notes for industry (in Scotland) 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, 2022i).
  6. The scope of decommissioning requirements in Scotland is between the Mean Low Water Springs (MLWS) mark and the seaward limits of the territorial waters, including coastal waters and the Scottish part of the REZ.