Part 3 – Marine Planning
Section 5 - National marine plan and regional marine plans
9.Section 5 requires the Scottish Ministers to prepare and adopt a national marine plan for Scotland’s marine area and allows them to prepare and adopt regional marine plans for Scottish marine regions. The marine plans will state the Scottish Ministers’ policies for sustainable development of the area to which the plan applies and the Scottish Ministers’ policies on the contribution of the marine protected areas and other conservation sites to the network of protected sites. The plans must be prepared and adopted in terms of schedule 1.
10.In preparation for a national marine plan (or regional plan) Scottish Ministers must set economic, social and marine ecosystem objectives, along with objectives relating to the mitigation of, and adaption to, climate change. Scottish Ministers must also prepare an assessment of the condition of the Scottish marine area (or region) at the time of preparing the plan and a summary of the significant pressures and human impacts on the relevant area. A national or regional marine plan may include statements or information relating to policies contained within the plan.
11.Section 5(5) enables the Scottish Ministers to create Scottish marine regions through secondary legislation and to identify the boundaries of the regions.
Section 6 - Conformity of marine plans with other documents
12.The national and regional marine plans must conform to any marine policy statement currently in effect for the Scottish marine area, unless relevant considerations indicate otherwise. The regional marine plans must also conform with the national marine plan, unless relevant considerations indicate otherwise. The section also makes provision as to what is meant by a marine policy statement being in effect.
Section 7 - Coming into effect of marine plans
13.Section 7 indicates that the national marine plan or a regional marine plan only comes into effect once it is published in accordance with schedule 1. Once it comes into effect, a marine plan affects decisions of public authorities as set out in section 15.
Section 8 - Amendment of marine plans
14.Section 8 allows a marine plan to be amended when necessary by the Scottish Ministers. Any amendment to a marine plan must be prepared and adopted in exactly the same way as the original marine plan. The amended marine plan comes into effect once it has been adopted and published.
Section 9 - Withdrawal of marine plans
15.Section 9 allows the Scottish Ministers to withdraw a marine plan where they consider it appropriate to do so. It may be that there is a problem with the plan that they do not want to, or cannot, rectify by making an amendment such as if they decide that the plan must cease effect immediately. In those circumstances they could just withdraw the plan. They must publish a notice in the Edinburgh Gazette and the marine plan will cease to have effect from the date of publication. The Scottish Ministers must bring the withdrawal to the attention of interested persons. Once a national marine plan has been withdrawn, the Scottish Ministers must, as soon as possible, prepare and adopt a new national marine plan for the Scottish marine area.
Section 10 – Effect of withdrawal from or of marine policy statement or of national marine plan
16.If the Scottish Ministers withdraw from a marine policy statement, or a marine policy statement is withdrawn, then the validity or effect of a national marine plan or regional marine plan is unaffected. The construction of any national or regional marine plan is unaffected in the period between a marine policy statement being withdrawn and a new statement coming into effect. The withdrawal of a national marine plan by Scottish Ministers does not affect the validity of a regional marine plan, nor the construction of any regional marine plan until a new national marine plan is in effect.
Section 11 - Duty to keep relevant matters under review
17.Section 11 requires the Scottish Ministers to keep up to date with issues so as to ensure that there is effective marine planning. The non-exhaustive list of matters which need to be reviewed is in section 11(2). This includes the physical, environmental, social, cultural and economic characteristics of the marine area and of the living resources which the area supports. “Cultural” characteristics include those which are of a historic or archaeological nature.
Delegation of functions relating to regional marine plans
Section 12 - Delegation of functions relating to regional marine plans
18.Section 12 permits the Scottish Ministers to direct a person they nominate and, one or more of a public authority or a person nominated by a public authority to carry out some of their marine planning functions. The group the Scottish Ministers delegate functions to must as far as is reasonably practicable include persons with an interest in the protection and enhancement of the Scottish marine region, the use of the region for recreational purposes and the use of the region for commercial purposes.
19.Where Scottish Ministers delegate functions to a public authority, they must state the grounds for doing this in preference to a group of persons. The public authority must consult on the exercise of its functions in the marine area with representatives of persons detailed in section 12(5)(b)(i). The Scottish Ministers may give a direction only with the consent of the public body. The delegate must comply with the direction and is taken to have all the necessary powers to carry out the functions. The functions which can be delegated in relation to a regional marine plan are those under sections 5, 8, 11 and 16.
20.Excepted functions are detailed in section 12(8). These are functions which cannot be delegated and these include whether to publish a consultation draft plan or the final regional marine plan.
Section 13 - Directions under section 12: supplementary provision
21.Section 13 provides further as to directions given under section 12. The Scottish Ministers must publish a direction in such a way as to bring it to the attention of interested parties. For as long as the direction remains in effect, the functions are to be carried out by the public body or unincorporated group acting on behalf of the Scottish Ministers. Section 13(3) sets out how the Scottish Ministers may make exceptions to this rule.
22.Section 13(4) allows the Scottish Ministers to impose terms, conditions, obligations or requirements on the way the public body or unincorporated group carries out the functions delegated to them. It also allows the Scottish Ministers to make financial provisions in connection with the carrying out of functions by the public body or unincorporated group.
23.Section 13(5) allows the Scottish Ministers to delegate their functions differently for different areas or different delegates recognising that different marine regions will have different demands. Section 13(6) allows Scottish Ministers to make grants to a delegate for the exercise of designated functions.
Section 14 - Directions to delegates as regards performance of designated functions
24.Section 14 allows the Scottish Ministers to give further directions to a public authority or unincorporated group setting out how those functions should be performed. The Scottish Ministers must consult the public authority or unincorporated group before giving a direction. The delegate must comply with any directions given. The directions must be published to bring them to the attention of interested parties.
Decisions of public authorities affected by a marine plan
Section 15 - Decisions of public authorities affected by marine plans
25.Section 15 indicates that a public authority must make any authorisation or enforcement decision in accordance with the appropriate marine plan unless relevant considerations indicate otherwise. If the public authority does not make an authorisation or enforcement decision in accordance with the appropriate marine plan it must state its reasons. Authorisation or enforcement decisions relate to the authorisation or licensing of activities within Scotland’s marine area. For all other decisions which are not authorisation or enforcement decisions, public authorities must have regard to the appropriate marine plan.
Monitoring and reporting
Section 16 - Monitoring of and periodical reporting on implementation of marine plans
26.Section 16 requires the Scottish Ministers to monitor and report on the effects of the national marine plan and the progress it has made towards sustainable economic development. Similarly public authorities or unincorporated groups will be required to monitor and report on regional marine plans and the progress they have made towards the objectives within the national marine plan. The reports should be published every 5 years and the Scottish Ministers must decide whether or not to amend or replace the national marine plan or a regional marine plan. Replacing a marine plan means preparing and adopting a new plan and withdrawing the existing one.
Validity of marine plans
Section 17 -Validity of national marine plans and regional marine plans
27.Section 17 sets out how a person aggrieved by the national marine plan or a regional marine plan may challenge the contents if thought not to be within the appropriate powers or if it is considered that a procedural requirement has not been met. An application to the Court of Session must be made no later than 6 weeks after the publication of the relevant documents.
Section 18 - Powers of the Court of Session on an application under section 17
28.Section 18 sets out the powers of the Court when hearing a challenge to the validity of a plan. Section 18(2) allows the courts to make an interim order suspending the operation of the relevant document until the proceedings are over. If the complaint is upheld the courts can quash the relevant document or remit it back to the Scottish Ministers and give directions as to the actions that are to be taken.
Interpretation of Part 3
Section 19 - Interpretation of Part 3
29.Section 19 sets out how certain terms in Part 3 of the Bill are to be interpreted.