Independent Investigation of proposals in thedraft National Marine Plan

Report to Scottish Ministers

June 2014

Registered Office: 11a South Charlotte Street, Edinburgh, EH2 4AS.Registered in Scotland SC143209.Registered Charity SC021337. 

Contents

1: Introduction .............................................................................................................. 3

Key Issues

2: Linkages and fit with relevant legislation, policies and guidance ............................. 53: Integration between marine and terrestrial planning................................................. 74: Clarity on timescales for implementation, delivery and review.................................. 85: Consistency of terminology....................................................................................... 86: Use and signposting of research and data................................................................ 117: Links between General objectives and policies and Sector objectives and policies. 138: Balancing emerging uses of marine environment with existing economic activity... 149: The advantages and disadvantages of the approach to fisheries............................. 1510: Integration between sectors and conflict resolution................................................ 1911: Protection afforded to the marine environment and opportunities for mitigation, enhancement, and adaptation to climate change.........................................................

20

12: Cumulative impacts................................................................................................. 2213: Summary and conclusions...................................................................................... 23

Appendices

Appendix 1: English East Inshore and East Offshore Marine Plans Fisheries policies and context

24

Appendix 2: Summary of phone interview with Bertie Armstrong, Scottish Fishermen’s Federation

29

Appendix 3: Summary of phone interview with Archie McFarlane, Clyde Fishermen’s Association

31

List of abbreviations

CCS - Carbon Capture and StorageCFA - Clyde Fishermen’s AssociationCFP - Common Fisheries PolicyGES - Good Environmental StatusHLMO - High Level Marine ObjectivesKISCA - Kingfisher Information Services Cable AwarenessMPS - Marine Policy StatementMSY - Maximum Sustainable YieldNMP - National Marine PlanNTDF - National Tourism Development FrameworkRMP - Regional Marine PlanSEPA - Scottish Environmental Protection AgencySFF - Scottish Fishermen’s FederationSNH - Scottish Natural Heritage

2

1: Introduction

Planning Aid for Scotland

Planning Aid for Scotland (PAS) is an independent and impartial organisation that helps people become involved in shaping the development of land, villages, towns and cities by engaging more easily with the planning system - a system which many people still regard as challenging and complex. PAS is a national award-winning charity, operating on social enterprise principles.

Scotland’s National Marine Plan

Marine planning in Scotland’s inshore waters (out to 12 nautical miles) and devolved matters are governed by the Marine (Scotland) Act 2010, and in offshore waters (12 to 200 nautical miles) and reserved matters by the Marine and Coastal Access Act 2009. Together, these Acts establish a legislative and management framework for the marine environment, so that competing demands on the sea can be managed sustainably. Under the Marine (Scotland) Act 2010, Scottish Ministers are required to prepare and adopt a National Marine Plan covering Scottish inshore waters. The Marine and Coastal Access Act 2009 requires that Scottish Ministers seek to ensure that a marine plan(s) is in effect in the offshore region when a Marine Policy Statement is in effect.

The National Marine Plan (NMP) covers both inshore and offshore waters and applies to the exercise of both devolved and reserved functions. It sets marine planning in context, presents key objectives and a range of general and sector-specific planning policies. The aim is to provide a single framework to manage all activity in Scottish waters, offering clarity to developers and decision makers on Scotland's priorities for sustainable use of the sea. The Scottish Government’s vision for our marine environment is for ‘clean, healthy, safe, productive, biologically diverse marine and coastal environments, managed to meet the long-term needs of people and nature’. Effective marine planning is crucial for the delivery of this vision.

NMP public consultation

Planning Scotland’s Seas: Scotland’s National Marine Plan was published for consultation in July 2013. The document set marine planning in context, presented key objectives and planning policies related to achieving sustainable development and use of the marine area. The consultation posed 40 questions, a series of general questions on the draft Plan, followed by questions on the different sector chapters. The consultation period ran from the 25th of July to the 13th of November 2013, and attracted 124 responses. This comprised the views and opinions of 108 organisations and 16 individuals. The categories with the greatest number of respondents were local authorities, fisheries organisations, energy organisations and private individuals.

‘Why Research’ analysis of consultation responses

3

Following the consultation period, an analysis of the responses obtained was conducted on behalf of Marine Scotland by Why Research, and the results were published in 2014. For this analysis, responses were examined and key themes, i.e. similar issues raised in a number of representations, were identified for each question. Sub-themes; including reasons for opinions expressed, supporting arguments, alternative suggestions or other related comments; were also noted. The key themes were then examined to identify whether any particular theme was specific to any respondent group or groups, or from individuals.

PAS independent analysis of the NMP

The Marine (Scotland) Act 2010 and the Marine and Coastal Access Act 2009 requires Ministers, when they have published a consultation draft of a marine plan, to consider appointing an independent person to investigate the proposals contained in the draft and to report on them. The Act also requires the appointed person to make recommendations and give reasons for them. The report and the recommendations will be considered in the redrafting of the National Marine Plan.

Scottish Ministers, having considered matters that were raised in the consultation process consider it appropriate for an independent investigator to be appointed. Planning Aid for Scotland, with a foundation in planning matters and independence from Scottish Ministers, have been appointed as the independent investigator.

This analysis is guided by those key themes identified by the previous consultation responses research, and seeks to establish how these issues have been addressed in the draft NMP, how effective this is, and if changes should be made for the production of the finalised NMP. To do so, the text of the draft Plan was examined, and the treatment of the key issues in the policies and their supporting information was assessed for clarity and comprehensiveness of content.

Of those who responded to the original consultation, the fishermen’s representatives the Scottish Fishermen’s Federation (SFF) and the Clyde Fishermen’s Association (CFA) formally requested that an independent investigation be conducted to consider their concerns. Their submissions to the consultation were examined, and representatives from these organisations were contacted to gain a fuller understanding of their views. Summaries of these interviews are included as appendices.

This report uses a format whereby findings are analysed on a theme by theme basis, with each chapter covering a different key theme. Reasoned recommendations are included throughout, after associated commentary, whenever discussion turns to any potential improvements or changes.

4

2: Linkages and fit with relevant legislation, policies and guidance

The draft NMP provides considerable background information on the legislation behind its creation. The two Marine acts and their respective application to devolved and reserved functions are explained in detail, and the differences between inshore and offshore waters are clearly defined. Overall, the text makes clear why there are two separate Acts, which areas they pertain to, and why a joint approach has been taken to overall marine planning. It is clearly stated that the General and Sector planning policies apply to both inshore and offshore waters, unless stated otherwise.

The introductory chapters are similarly detailed in setting out where the NMP sits in relation to other planning and consenting regimes. A reasonably clear hierarchy is established, from the UK-wide Marine Policy Statement (MPS), to the NMP itself, and then to the proposed Regional Marine Plans (RMPs). A later section offers some wider context, explaining that marine planning will sit within an international regulatory framework that includes various EU policies and directives and the UN Convention on the Law of the Sea. While it does not go into any technicalities, it is stated that marine planning authorities will work with UK and international peers to ‘encourage compatibility’ (pg. 11) with other marine plans.

While the level of detail remains high, there is a loss of clarity when the topic moves onto the NMP strategic objectives and the approach to policies. These are explicitly linked to a wide and varied policy context at the Scottish, UK and international levels, beginning with the Scottish Government National Objectives and Outcomes and the Vision for the Marine Environment, which is itself linked to the MPS and its High Level Marine Objectives (HLMOs). Delivery of the Vision is linked to both these and the implementation of the EU Marine Strategy Framework Directive and the 11 descriptors of Good Environmental Status (GES). It is stated that, once developed, programmes to achieve GES descriptors will be incorporated into future marine planning, although no timescale is offered. It is explained that the HLMOs and GES descriptors, plus additional climate change measures, constitute the strategic objectives of the NMP. It is through meeting these strategic objectives that the Vision shall be deemed to have been achieved.

Recommendation 1

In textual form, the content dealing with numerous strategies, indicators and objectives at different levels of governance can result in a degree of duplication and overlap, and a general confusion as to how they relate to each other. A graphical representation of this information, with a clear hierarchy and chains of objectives and outcomes, could offer much greater clarity and understanding to the reader.

References are made throughout the NMP to plans, strategies and guidance documents which have informed policy content. These can be both statutory and non-statutory. Some of the connections are made very clear, such as the development of broadband networks through undersea cables fulfilling part of the Scottish Government Digital Strategy. Others are less overt. A number of policies for tourist and recreational developments can be connected to the Scottish Government’s health and well-being agenda, although no actual

5

policy on this subject is directly referenced. Such connections may not be obvious to those unfamiliar with broader planning or government policy and such knowledge should not be assumed on the part of the reader.

Recommendation 2

If there is a broader context to a policy, or if it has relevance to other government initiatives, then making these connections overt through direct references whenever this is possible could produce a fuller understanding of the scope and potential of marine planning.

Wherever the Scottish Government has shared or limited responsibility for an aspect of marine planning, this is acknowledged in the NMP. For example, the fact that a majority of commercial fisheries are regulated by the EU Common Fisheries Policy (CFP), augmented by Scottish policies, is reflected in Policy FISHERIES 3 being expressly limited to 'within the CFP's parameters' (pg. 53). It is made very clear that defence and the oil & gas sector are reserved matters, but the appropriateness of the Scottish Government drafting complementary policies and collaborating with the relevant UK authorities to plan for the future is fully justified.

As well as existing policy, various aspects of the NMP are linked to proposed or future policies and strategies. However, it is often unclear exactly how and when these will be integrated into the processes and timescales of the NMP and its associated documents. For example, it is stated that the development of tourist infrastructure envisioned by the NMP will support delivery of the currently under-development National Tourism Development Framework (NTDF) for Scotland. It is unclear what the nature of the relationship between the two policies will be. Is the relevant NTDF content to be formally incorporated by the NMP, and vice versa? If not, what mechanisms are there to ensure complementary and not contradictory content, and when will this process occur? These questions apply equally to all policies and programmes which impact upon the marine environment but which lie outwith the formal structure of marine planning.

Recommendation 3

There could be greater explanation given to the processes which will inform the content of marine planning documents, with particular regards to complementing or incorporating other policies and strategies. These may emanate from within marine planning or may be from external actors which are still relevant to a marine context. There is currently little detail on any marine planning equivalents of the various stages that inform, for example, a Local Development Plan, such as the call for evidence or the Main Issues Report. More details on these stages would clarify exactly how the marine planning system intends to recognise and respond to the numerous factors which will influence, directly or indirectly, marine planning policy and practice.

6

3: Integration between marine and terrestrial planning

Marine planning cannot be treated as a discrete area of practice wholly separate to terrestrial planning, with their various overlapping remits, shared infrastructure and activities and common challenges. There is a clear recognition in the NMP of the importance of the relationship between marine and terrestrial planning, but a lack of clarity over the specifics of how this will be structured and managed in practice.

It is explained that legislation has been amended so that local authorities must give ‘consideration’ to marine plans when preparing their strategic and local development plans. There are numerous references to the need to be ‘compatible’; to ‘integrate’, ‘coordinate’ or ‘align’ the two fields. Such inconsistency in terminology is in contrast to the NMP’s argument that this process will be achieved through 'consistency of policy, guidance, plans and decision' (pg. 10). Local authorities will be represented within Marine Planning Partnerships, so there will be direct involvement by those responsible for land-based plans in the drafting of marine plans. Indeed, there are proposals, such as the identification of sites for aquaculture developments, which the NMP envisions as being jointly determined. Developers are expected to work with onshore planning authorities and stakeholders to examine the potential impact on communities of certain offshore developments, and may be expected to make contributions to onshore infrastructure. This will presumably require close cooperation in development management matters between marine and terrestrial planners through the regional marine planning authorities, as well as compatible plans and policies.

The issue is how to properly coordinate the production of marine and land-use plans to ensure their compatibility, and thus inform subsequent practice. Realistically, this requires some consideration of formal mechanisms and timescales, especially in terms of how and when the information from one plan-making process will be fed into the other. For instance, would local development plan Main Issues Report findings which impact upon marine planning be considered in the process of drafting a Regional Marine Plan? If so, how and when would this happen? At present, the NMP lacks any real detail which could answer these questions.

Recommendation 4

The NMP should give some indication that the practical considerations of marine-terrestrial integration have been fully addressed and that there are or will be formal systems designed and established to ensure meaningful integration of the two as the marine planning system continues to evolve. If possible there should be some detail as to how these relationships will work in practice, and there should be some guidance as to when in the respective plan-making processes that information from one field can or will inform the other.

7

4: Clarity on timescales for implementation, delivery and review

In very simple terms, there are few indications of any fixed or projected timescales for the implementation, delivery or review of the NMP within the current draft. It is not at all clear when it is expected to be finalised, published or enacted. There is also no indication of how regularly it will be reviewed or revised once it is in place. These are all weaknesses. The same issues apply to the associated documentation like the Regional Marine Plans, and as such there is a lack of clarity over the timing of the production of the regional plans in relation to the national plan. Will there be a coordinated production period for the regional documents as a group, or will individual regions differ, akin to the varying timescales for the creation and implementation of Local Development Plans? It also raises questions regarding how the system will operate in practice. As marine planning is effectively a completely new area of practice, there are no marine plans currently in place, unlike terrestrial planning which has established documentation across all planning authority areas. Therefore, will the implementation of marine planning as a whole wait until all regions are covered by a plan? Or will the NMP be used in areas which are not yet covered until the more detailed and region-specific RMPs are in place?

Recommendation 5

There should be much greater detail regarding fixed or projected timescales for implementation, delivery and review of the NMP and all derived or associated documentation. Even if these are target or aspirational dates, it would at least give a sense that there is an overall scheme and that there will be sound systems established in a timely fashion at the national and regional level to manage and coordinate marine planning and ensure periodic reviews of policy and practice.

Recommendation 6

There should be clarification regarding the relationship between the Regional Marine Plans and the National Marine Plan and any associated timescales, with particular regard to whether there will be co-ordinated implementation and if the NMP will be used until any particular marine region has its own RMP approved.

5: Consistency of terminology

The NMP states that the Scottish marine planning system 'should promote development and activities that support sustainable economic growth' (pg. 18). To do so, it sets out 'strategic policies for the sustainable use of Scotland's marine resources' (pg. 8). Marine plans are expected to set out policies for the 'sustainable development’ of their plan areas. It seems fair to ask what exactly is meant by ‘sustainable development’ and ‘sustainable economic growth’?

Some policy context is given through discussion of the Scottish Government's Key Purpose, which is based on increasing ‘sustainable economic growth', defined here as 'building a dynamic and growing economy that will provide prosperity and opportunities for all, while

8

respecting the limits of our environment in order to ensure that future generations can enjoy a better quality of life' (pg. 13). While this has had a significant influence on the formulation and orientation of policy, this definition is not given particular prominence in the text.

A definition of ‘sustainable development’ is offered in the section explaining the Scottish Government Vision for the Marine Environment. The five 'guiding principles' of sustainable development named as ‘achieving a sustainable economy’, ‘ensuring a strong, healthy and just society’, ‘living within environmental limits’, ‘promoting good governance’ and ‘using sound evidence responsibly’ (pg. 14). These principles are indeed evident throughout the content and policies of the Plan. However, it is unclear why this important definition is not given greater prominence in the draft document. ‘Sustainable development’ is a highly prominent concept in the NMP and one frequently mentioned. While linking this definition to the Vision is perfectly valid, it is easily missed and a reader seeking a definition for ‘sustainable development’ could struggle to locate it.

By way of contrast, at the beginning of the English East Inshore and East Offshore Marine Plans document there is a clear and prominent definition of sustainable development, derived from the same ‘Five Principles’, which are themselves taken from the UK Sustainable Development Strategy.

Recommendation 7

Earlier, more prominent definitions of ‘sustainable economic growth’ and ‘sustainable development’ would improve ease of use and could arguably increase the comprehension of readers as to what is meant by these terms.

In introducing the General policies, the NMP explains that 'A presumption in favour of sustainable development and use is presented along with other policies which are considered important in achieving a sustainable approach to sustainable economic growth' (pg. 24). The repeated use of ‘sustainable’ in the latter part of the sentence may or may not be a typographical error, but it is perhaps also illustrative of an overuse and mixing of these terms. It should be noted that this sentence reinforces the idea that sustainable development and sustainable economic growth are two separate but connected concepts. Also of note is the fact that the words ‘and use’ are appended to sustainable development. This is important, as it suggests that ‘development’ and ‘use’ are themselves two different concepts.

The headline policy of the NMP, GEN 1, states that ‘There is a presumption in favour of sustainable development and use of the marine environment’ (pg. 24). A presumption in favour is a strong policy stance, and the wording suggests that development and usage are given equal prominence. The problem is that the definitions that we have been given previously speak only of the sustainable development side, and the inclusion of the additional ‘use’ aspect is inconsistent throughout the NMP. The majority of the General Policies use the phrasing ‘development and use of the marine environment’, while others use ‘development and activities in the marine environment’. One (GEN 11) uses the slightly more nuanced 'Development in, and use of, the marine environment' (pg. 28). ‘Use’ and

9

‘activities’ are used interchangeably, but they are always phrased as separate to ‘development’.

Policy GEN 2 uses the wording 'sustainable developments and marine activities which provide economic benefit' (pg. 24), which could be interpreted in two ways. One is of developments and marine activities which are both considered ‘sustainable’, the other is of two separate spheres of activity, ‘sustainable developments’ and ‘marine activities’, which could enforce perceptions that certain marine activities provide economic benefits but are not themselves, sustainable, and are therefore disadvantaged by policy GEN 1. The accompanying text uses the phrase 'sustainable utilisation of the marine environment' (pg. 25), which is perhaps more encompassing. In introducing the Sector chapters, an entirely new phrase, 'economically productive activities' (pg. 40), is used, and the text also speaks of 'marine industries and activities' (pg. 40). The former is potentially a more generally agreeable phrase to use, as it uses largely unambiguous wording which encompasses a full range of successful commercial uses of the marine environment.

The potential for misunderstanding the meaning and intent of policies can result in concerns about the implications of these policies for those subject to them (see chapter 9: The advantages and disadvantages of the approach to fisheries).

Recommendation 8

There should be clarification of what is meant by a ‘use’, as opposed to a ‘development’, and how they relate to the key phrase ‘sustainable development and use’. This may require explicit definition, so as to ensure that it is clear what marine activities would be considered sustainable. Once these categories are clearly defined, there should be careful consistency of terminology in the Plan document. Terms should not be used interchangeably if this can be avoided. Entirely new phrases should not be introduced without clear explanations of what they are understood to mean in context. All of this clarification should ensure greater understanding of the aims of policies, and exactly who and what they cover.

As discussed in chapter 3: Integration between marine and terrestrial planning, a variety of terms are used which imply somewhat different practical approaches to the relationship between the two fields. Local authorities must give ‘consideration’ to marine plans when preparing developing strategic and local development plans, which suggests clearly separate plans prepared with an awareness of the content of the other so that informed decisions can be made about content and policies. Alternative uses of words like ‘compatible’, ‘coordinate/coordination’ and ‘align’ suggest similar scenarios, with perhaps a stronger emphasis on the goal of marine and land-use plans which complement each other. However, the use of ‘integrate/integration’ could be interpreted as meaning a much closer relationship, one in which the separate plan identities are lost. The rest of the NMP indicates that this is not an objective, but the use of imprecise or misleading terminology adds to a degree of uncertainty regarding the exact nature of the connections between onshore and offshore planning, and how this relationship will work in practice.

10

Recommendation 9

The exact nature of the relationship between marine and terrestrial planning should be more fully explained (see Recommendation 4), and from that position an appropriate term should be selected and consistently used, to ensure greater understanding of the way in which the two planning fields will relate to each other and avoid inaccurate assumptions about the extent of their shared identity.

Further to this topic, throughout the Plan the land-based planning regime is termed ‘terrestrial planning’. While this is a succinct and understandable term, contrasting with marine planning, it is arguably not a term that is much used or recognised in current planning practice, and may be a source of confusion. Various other terms are used, including ‘town planning’, ‘town and country planning’, ‘land use planning’ and ‘urban and regional planning’. This report uses terrestrial planning for succinctness and consistency with the NMP.

Recommendation 10

If ‘terrestrial planning’ is to be retained, then it should be explained that it is synonymous with the more familiar phrases. Its wider use in practice and documentation could be encouraged, either through interchangeable use or direct substitution for the current terminology. This should ensure greater clarity and consistency.

Or

Recommendation 11

Replace the term ‘terrestrial planning’ with the one of the more familiar and widely-used alternatives. This should also ensure greater clarity and consistency across planning practice and documentation.

6: Use and signposting of research and data

The NMP makes considerable use of a range of supporting information, with relevant legislation, policies, research documents and scientific papers referenced extensively throughout the document. This data comes from a range of sources, including government, academia, the scientific community, the private sector and industry. In-depth background information is used to establish the context and justify the subsequent policies, both General and Sector. Of particular influence has been Scotland's Marine Atlas, of which a detailed summary is included in the text.

The importance of evidence-based management of the marine environment is highlighted numerous times, and there are acknowledgements that there are areas where current data is insufficient or inconclusive. In relation to this, a number of ongoing and future research

11

projects are detailed. Examples include programmes looking at the commercial applications of renewable and CCS technologies, and the Clyde 2020 ecosystem restoration study.

The draft plan includes a number of high-quality maps and graphics, to illustrate policies, provide additional information and express ideas which are difficult to communicate through text. These maps can also be accessed through NMP Interactive, an online mapping tool, of which there is a summary of content and explanation of how to access the data. There are references to other maps and data sets, from organisations such as SNH and SEPA, which could be useful to applicants, stakeholders and other interested parties. Users may struggle in some instances to locate these external data sources, depending on how detailed and up to date the references given are.

A notable issue is that the supporting information is treated in an inconsistent fashion, variously displayed and referenced in-text through footnotes, tables, inset boxes and hyperlinks. This harms the readability and clarity of the document, and makes certain information harder to follow up on. There are also a number of instances where data is quoted but no reference or source is given, an example being the statistics for aquaculture employment and exports.

Recommendation 12

The draft plan should (and presumably will) be subject to a rigorous process of editing and fact-checking to ensuring that all uses of supporting or external data are referenced in some fashion, so that there is no content which cannot be sourced.

Recommendation 13

A more structured and consistent approach to the way in which supporting data is used and signposted in the text could result in greater clarity and understanding. This could be based in a broader redesign of the way in which policies are treated within the text. By way of example, the following is an excerpt from the English East Inshore and East Offshore Marine Plans document, a template which sets out how the policy content is displayed and how each aspect is grouped and logically ordered:

‘Context: to provide sufficient background to the plan policies including the issues to be addressed. Further detail can be found in supporting documents, mainly the Evidence and Issues and draft Vision and Objectives reports;

Signposting to existing policies and measures: particularly where they have emerged relatively recently, e.g. from the Marine Policy Statement, National Planning Policy Framework or development of the Marine Strategy Framework Directive, or may not be widely known or understood by stakeholders with an interest in the marine plan areas;

Plan policies: boxed and presented in a different font to help stand out from the rest of the text. For ease of reference throughout the marine plans, each policy is given a code, e.g. GOV1. See Table1 for an overview of all plan policies;

12

Inshore or Offshore: indicates which marine plan areas the policy applies to;

Justification/Explanation: outlines the intent and basis for the policy where required, e.g. requirements set out in national policy and/or issues specific to the East plan areas. Reference is made to maps or other information that indicate where the policy applies more locally or spatially in the marine plan areas. Further detail is provided to clarify or define terms used in the policy, with examples where appropriate.’ (pg. 36)

Or

Recommendation 14

A less radical yet still more consistent approach could be to simply settle upon one approach to referencing, whereby all research and data content is referenced in-text, or footnoted, or hyperlinked etc. This would enable readers to easily follow up on the information presented in the text.

7: Links between General objectives and policies and Sector objectives and policies

The NMP gives an in-depth explanation that the origins of the General strategic objectives are the MPS HLMOs and the GES descriptors, augmented by additional Scottish climate change measures. It is subsequently made reasonably clear what the relationships are between General and Sector objectives. The former are categorised as 'economic', 'social', 'marine ecosystem' or 'climate change' (pg. 18), with associated symbols displayed against the objectives for each Sector. This use of graphics forms a successful and accessible feature and aids in establishing connections through the Plan. The grouping does of course prevent individual Sector objectives being definitively linked with specific General objectives, and vice versa.

What is less clear are the links between General and Sector policies. General policies are explained as being relevant to all sectors and decision-making, whereas Sector policies deal with the specific needs of different users. The ways in which Sector policies support or enhance particular General policies are often more implicit than explicit. Connections and shared purposes can be interpreted through reading the document in-depth, but there is little in the way of overt cross-referencing between Sector and General Policies. This may result in uncertainty over the precise reasoning behind a particular Sector policy.

Below is another excerpt from the English East Inshore and East Offshore Marine Plans document. This table formally cross-references individual objectives and policies, showing definite linkages between them.

13

Recommendation 15

The policy cross-referencing approach of the English East Inshore and East Offshore Marine Plans could be emulated or adapted by the NMP as a means of enhancing the understanding of the connections between the objectives and policies at both General and Sector levels.

8: Balancing emerging uses of marine environment with existing economic activity

The NMP takes a positive view on the potential of plan-led sustainable development and use of the marine environment, arguing that this will give greater certainty and confidence to both existing and future users. 'Supporting economically productive activities' (pg. 40) is identified as a 'key issue' for marine planning. There are numerous references to the applicability of certain policies to those activities identified in the Scottish Government Economic Strategy as key growth sectors. This includes emerging industries like offshore renewables, but also existing activities like fisheries (as part of Food & Drink) and oil & gas.

The marine environment is viewed as a source of opportunity in the NMP, which highlights the importance of 'ecosystem goods and services' (pg. 18), the economic and other benefits derived from the seas. There is policy support for the due consideration of potential economic and social benefits of new developments and growth in existing activities, at the community, local and national level. There is recognition that certain marine industries are often highly important sources of revenue and employment for remote communities, with considerable socio-economic significance. Shared opportunities and interests can generate shared needs, the most fundamental of which is access to the sea. Port and harbour infrastructure is of vital importance to a range of marine developments and activities, including fisheries, offshore installations and tourism. The NMP envisions that the terrestrial

14

component of marine infrastructure will be developed from a shared planning approach (see chapter 3: Integration between marine and terrestrial planning).

As well as these positive aspects, the NMP does also recognise the pressures that the marine environment is under, as established by various studies and specialised research into areas such as fish stocks. The potential impacts may be socio-economic as well as environmental. It is argued that policies which recognise both opportunities and challenges will lead to decision-making which will protect and enhance ecosystems, safeguarding their benefits and those human industries and activities which rely upon them. Planning policies will inform proposals, decision-making and management, including renewal of licenses for existing activities.

Among the known pressures are that growth and expansion could result in increased spatial competition. Mitigation measures are important to enable co-existence of different uses, and developers and applicants are required to demonstrate an awareness of potential impacts and develop strategies to minimise them, working with onshore planning authorities and stakeholders to examine the implications of proposals and map scenarios, especially if those are on a commercial scale.

NMP policies encourage the sharing of space by compatible activities, such as undersea pipelines and cables being co-located in ‘utility corridors’ (pg. 74). Alternatively, the policy justification of policy GEN 5 states that where activities are 'incompatible or mutually exclusive' (pg 26) Regional Marine Plans may designate some areas for preferential use by particular sectors. There is no indication of what mechanisms would decide which activities to prioritise, and for what reasons. It is unclear, for instance, whether existing activities would be given any precedence in this hierarchy. Policies RENEWABLES 1 and 3 contain a presumption in favour of the development of renewables in designated areas in Sectoral Marine Plans. This may raise questions as to how balance will be struck in decision making processes. The policy justification does not consider this aspect of the Sectoral Marine Plan concept

Recommendation 16

There should be greater detail about the potential for Regional Marine Plans to designate particular areas for preferential use by particular sectors, how these decisions will be made and for what reasons. This should ensure greater transparency and subsequently legitimacy to any subsequent designations that may disadvantage non-preferred industries or activities. This also applies to the Sectoral Marine Plans, which should detail how the interests of existing activities are to be balanced with future renewable energy developments.

9: The advantages and disadvantages of the approach to fisheries

The NMP states that fishing will continue to be a viable commercial activity in Scottish waters, that the economic benefits will grow and that the main challenge will be 'harmonious co-existence between fisheries and other users' (pg. 55). The approach to fisheries laid out

15

in the current draft offers some indication that this can be achieved, but aspects of policy could benefit from strengthening and clarification and some additional measures should be considered. As a topic area, fisheries drew some of the strongest consultation responses; with both the Scottish Fishermen’s Federation (SFF) and Clyde Fishermen’s Association (CFA) submitting highly critical views of the draft plan. It was suggested by these organisations that the approach to fisheries taken by the English East Inshore and East Offshore Marine Plans was superior to that of the NMP. This section reflects on some of the criticisms and in parts compares the treatment of fisheries in the two documents (the fisheries policies of the English Plans are included in this report as Appendix 1). Contextually, it should noted that the English East Inshore and East Offshore Marine Plans cover a significantly smaller area than what will be covered by the NMP. The fishermen’s organisations were also contacted directly, to gain a fuller understanding of their concerns. Summaries of these interviews are included as appendices (see Appendix 2 & 3).

The general objectives of the NMP have been discussed in previous chapters. The Plan sets clear objectives for the fisheries sector, the principle one being the achievement of Maximum Sustainable Yield (MSY). This is to be through the maximising quota opportunities but ensuring long-term stability through sustainable exploitation. The fleet is to become a world leader in sustainable fishing practices. Fishing is to remain a viable career option, and the industry one which sustains communities. To enable this, the revenue and employment contributions of the industry are to be increased through the addition of value through the supply chain and product diversification. Discarding is to be tackled, by shifting towards management of removals rather than landings, eliminating unwanted catches at the source. This is part of a general re-orientation of fisheries management, structured on a regional sea-basin model and underpinned by sound scientific evidence, meeting national and international environmental priorities.

Despite objectives in support of the sector, fishermen’s representatives have significant concerns regarding the actual policies which have been formulated to achieve them, especially GEN 1. The consultation responses explain that they do not recognise fisheries as falling within a definition of ‘development’, and as such they feel that their industry is placed at a disadvantage. They themselves argue that the closest definition for fishing is an ‘economic activity’. However, it should be pointed out that the exact policy wording is ‘there is a presumption in favour of sustainable development and use of the marine environment’ (pg. 24), with fisheries being considered a use (see chapter 5: Consistency of terminology for a detailed discussion of this issue).

In comparison, Objective 1 of the East Inshore and Offshore Marine Plans is ‘To promote the sustainable development of economically productive activities’ (pg. 26), which it explains is related to the need to ‘sustainably grow local and national economies through marine activities that lead to the production of goods and services that add value, (i.e. those that make a significant impact on Gross Value Added locally, nationally and internationally)’ (pg. 26). The phrase ‘economically productive activities’ is perhaps more encompassing, and more closely conforms to a definition which fisheries can be understood to fall within, even though the policies are essentially the same in their intent. Notably the objective is to promote, rather than presume in favour of or prioritise any particular activities. The only test, per se, is whether the activities in question make a significant economic contribution. In a similar economic focus, the second plan objective is ‘To support activities that create

16

employment at all skill levels’ (pg. 26), with an emphasis on creating job opportunities for local people. Again, such wording could perhaps more easily be interpreted as being supportive of existing fisheries activities, and fishing communities, rather than new developments. The context for the East Inshore and East Offshore fisheries policies makes clear reference to the UK Marine Policy Statement and its support for the UK’s ‘long history of fishing both inshore and offshore waters, which the UK Administrations wish to see continue’ (pg 48). The equivalent Scottish policy does not, an absence noted by fisheries representatives.

Recommendation 17

The NMP could make a clear and explicit commitment to upholding the Marine Policy Statement’s support for the UK’s ‘long history of fishing’. This would strengthen the fisheries policies in the Plan and demonstrate the value accorded to the industry by marine planning.

NMP Sector policies broadly support the achievement of the aforementioned Sector objectives. FISHERIES 1 and 3 focus on sustainable fishing and management of stocks, within the parameters of the CFP and other international commitments. If anything, FISHERIES 3 is more in-depth version of FISHERIES 1. A similar situation exists with policies FISHERIES 2 and 4, which seek to balance the interests of fishing with other sectors. The former states that marine planning must ‘take account of fishing in consideration of any development in the marine environment’, and that ‘local fishing interests should be consulted where appropriate’ (pg. 53). The latter lists ‘key factors’ which should be ‘taken into account’ (pg. 54) by decision-makers when proposals may potentially impact upon fisheries. These include the economic importance of the sector, particularly to fishing communities; the potential impacts on the sustainability of stocks and their exploitation within a given area; the environmental impact on the marine environment with particular respect to fish species and habitats; and the potential for displacement of fishing activities and the wider socio-economic and environmental implications of this. While it is important that there are policies which do recognise the importance of these areas to the fishing industry, the requirement that they be ‘taken into account’ could perhaps be strengthened.

FISHERIES 5 seeks to formalise the relationship between fisheries and developers/users through fisheries management plans. These documents should include an assessment of the socio-economic and environmental impacts of proposals and recognition of the right of fisherman to catch their quota, plus measures to mitigate any socio-economic and environmental impacts and any constraints on fishing activity. They are to be prepared with the ‘full engagement’ (pg. 54) of local fisheries interests. While these are all positive steps, the policy also states that ‘all efforts should be made to agree the plan with those interests’ (pg. 54). There is no further guidance on what should happen if agreement is not reached among the parties. How does the planning process move on from such an impasse? Would proposals be approved even if these fisheries management plans are not enacted?

17

Recommendation 18

There should be greater detail regarding the creation of fisheries management plans (to be dealt with as a function of the licensing processs), in particular the practical implications should the parties fail to come to an agreement.

The main fisheries policy in the East Inshore and Offshore Marine Plans is FISH1, which states that ‘Within areas of fishing activity, proposals should demonstrate in order of preference: a) that they will not prevent fishing activities on, or access to, fishing grounds, b) how, if there are adverse impacts on the ability to undertake fishing activities or access to fishing grounds, they will minimise them, c) how, if the adverse impacts cannot be minimised, they will be mitigated, d) the case for proceeding with their proposal if it is not possible to minimise or mitigate the adverse impacts’ (pg. 163). The scope of this policy depends somewhat on the definition of ‘areas of fishing activity’, and ‘fishing grounds’ but shows a clear hierarchical preference for enabling fisheries activities to continue as unhindered as possible. (With regard to and in comparison with d), above, it should be noted that policy FISHERIES 5 of the draft NMP states that ‘Where an impact on existing fishing activity may occur, a fisheries management plan should be prepared by the developer, involving full engagement with local fishing interests. All efforts should be made to agree the plan with those interests ...’ (pg 54)).

Overall, the East Inshore and Offshore Marine Plans constitute a strong pro-fisheries policy. The policy justification includes the socio-economic role of fisheries as a source of revenue and employment, explicitly linking it to the support for the sector included in the MPS. Separate general plan policies address the broader issues of sector co-existence and displacement pressures. This is in contrast to the NMP, which bundles these areas into policy FISHERIES 4.

The other East Inshore and East Offshore fisheries policy, FISH2, is very similar to FISH1, but is aimed at the other end of the fisheries chain, seeking to preserve the source of fish through the protection of spawning and nursery areas and associated habitats. It recognises that it is not enough to safeguard fishing activities themselves, but that new developments must not compromise the health of stocks or the marine environment that supports them. Again, this is linked to the aims of the MPS.

Recommendation 19

Consideration could be given to a redrafting of the NMP fisheries policies reflecting those of those of the East Inshore and East Offshore Marine Plans. This could be in terms of both their structure (fewer, more comprehensive policies) and content (the preference for existing fisheries activities).

A notable aspect of the NMP in which it differs from the East Inshore and East Offshore Marine Plans is the recognition of the importance of port and harbour infrastructure, including processing and market facilities, to fisheries activities, and the subsequent policy

18

support to safeguard such assets. Port development proposals should take fishing needs into account and engage with fisheries stakeholders. Importantly, there is a presumption in favour of maintaining any infrastructure that has reached a minimum level required to support a dependent fishing fleet. This is practical support to maintaining a fishing presence in these communities, and a policy which the English document does not have.

The NMP maintains the position that marine conservation may require restrictions on use through management and licensing arrangements. It is clearly stated that commercial sea fishing licences will continue to be issued by Marine Scotland, in accordance with marine plan provisions. The English Plans document also seeks to clarify the legal position regarding fisheries licensing and how this relates to consents under marine planning. It states that marine planning does not impose additional regulation or requirements upon existing licence holders. The Marine Management Organisation will perform a similar role to Marine Scotland in fisheries management. Both Plans articulate an intention to move to a regional model of management. There are significant concerns about this among fishermen’s representatives, principally regarding who will be responsible for decision-making and what level of knowledge and understanding of fisheries matters they will possess. There is strong opposition to the idea that those with little or no knowledge of the industry could have influence over fisheries management decisions. They also feel that such an approach would not conform to the current legal and regulatory frameworks governing fisheries management. Readers of the English plans are directed to the sections of the Marine and Coastal Access Act 2009 which deal with fisheries management through the marine planning system. It is explained that other laws and management mechanisms will influence decisions and may carry greater weight than plan policies. The NMP does not give any indication that legal and regulatory factors could on occasion outweigh the policies of marine plans in Scotland.

Recommendation 20

The NMP should give greater detail on the reasoning and justification behind the move towards a regional model of marine management, and the practical implications of this for fisheries management. This should include more information about what decision-making structures will be established, and how regional plans will relate to the duties of Marine Scotland, as a national body, to enforce management regulations.

10: Integration between sectors and conflict resolution

The benefits of plan-led sustainable development and use are seen to be applicable across a range of sectors and to both existing and new activities. There is a strong focus throughout the NMP on the wider, mutual benefits of development, whether these are economic, social or environmental. As previously discussed, the NMP does acknowledge that growth and expansion can result in increased spatial competition. 'Interactions with other users' (pg. 117) are identified as a 'key issue' for marine planning, and it is argued that marine planning can 'help address conflict or promote synergy' (pg. 40). Indeed, part of the rationale for Sector policies is that they can be used to 'manage conflicts between marine users' (pg. 20).

19

There are indications that there already exist a number of formal and informal relationships between different sectors, aimed at conflict avoidance and resolution and peaceful co-existence in the marine environment. It is noted that the fishing industry already has a long history of constructive engagement with the oil and gas industry, and there are industry codes of practice agreed with the MOD to ensure that the impact of fisheries on defence activities is minimised, and vice versa. The fishing industry also works with the telecoms sector through the Kingfisher Information Services Cable Awareness (KISCA) to safeguard undersea cables. Such relationships have been established within the private sector and between the private and public sectors without the involvement of formal marine planning mechanisms.

Recommendation 21

The future marine planning system should ensure that existing cross-sector agreements can continue to function, and should seek to complement such arrangements rather than replace them. The NMP could be used to encourage similar initiatives wherever there is the potential for conflict over shared space and/or resources.

To deal with the potential for conflict in the marine environment, the principles and ideals of terrestrial planning have effectively been transposed onto the marine environment. The NMP and its policies express a strong belief that fairness, transparency and equal rights to participation in the planning process should result in less conflict. In balancing competing demands, decisions must ultimately be made, but the process must be seen to be operating in the long-term public interest. This should lend legitimacy to the marine planning system and instil faith in its processes. As with terrestrial planning, success is linked to early and meaningful engagement with stakeholders, and to decision-makers giving due consideration to their views and submissions. As on land, developers and applicants have responsibilities to inform and engage with communities, explore potential impacts and develop mitigation strategies where necessary.

While this is indeed admirable, it remains to be seen whether or not best practice developed within terrestrial planning is compatible with marine planning. It is only through practice that this will become apparent, and the ability of marine planning to adapt to balance competing demands will be a crucial determinant of success.

11: Protection afforded to the marine environment and opportunities for mitigation, enhancement, and adaptation to climate change

A separate SEA has been conducted of the NMP, as well as a Habitats Regulations Appraisal, but the draft plan itself discusses in detail the contribution that it can make to environmental and climate change issues. It is made clear from the outset that the protection and health of the seas is a priority, and that the potential impacts of climate change are a fundamental consideration for marine planning. The NMP is seen as a mechanism by which the marine environment can be safeguarded and enhanced, and through which the effects of

20

climate change can be mitigated. Climate change (and its associated effects) is identified as a 'key issue' for marine planning. There is detailed consideration of the environmental context of all the sector topics, the threats posed by climate change, the potential environmental impacts of proposals, plus any opportunities for improvements.

Marine planning, in common with the public sector as a whole, has an obligation to conform to the environmental targets and measures of the Climate Change (Scotland) Act 2009. The Scottish Government’s Vision for the Marine Environment is of 'clean, healthy, safe, productive and biologically diverse oceans and seas, managed to meet the long term needs of nature and people' (pg. 14). The strategic objectives of the Plan are charged with delivery of this Vision, and are explicitly linked to environmental standards through the HLMOs, GES descriptors and additional climate change measures. Developers/users must demonstrate that their proposals will not compromise these standards. Planners and decision-makers have a duty to comply with legal protections and to establish what mitigation measures, if necessary, should be enacted to safeguard protected habitats, species and GES. The Plan outlines a number of proposed marine conservation areas in addition to those already established.

Marine conservation interests, heritage assets and designated areas of scenic quality are given what appears to be strong policy protection from the potential impacts of existing or proposed activities or developments, although as the system is discretionary there remains the possibility that proposals deemed to have overwhelming benefits may still obtain approval. Such judgements are inherently subjective and reinforce the necessity of effective engagement and evidence-gathering to support decision-making.

The NMP highlights the concept of 'ecosystem goods and services' (pg. 18), the economic and other benefits of the marine environment. It argues that policies which recognise this will result in decision-making which will protect and enhance ecosystems, while safeguarding the derived benefits to those industries and activities which rely upon them, such as fisheries. This should theoretically be a positive measure as it recognises the interconnected economic, social and environmental aspects of sustainable development, but it should not be overused. It is arguably a very materialistic understanding of the marine environment. Some habitats and species will require a level of protection which simply cannot be reconciled with commercial exploitation. Indeed, the NMP does state that activities deemed to be damaging to existing or proposed areas of marine conservation will be restricted or mitigated through management and licensing arrangements.

As well as protection and mitigation, the NMP supports efforts to enhance the marine environment, especially when these measures can themselves contribute to greater resilience to the impacts of climate change. Opportunities for flood management and coastal defence, especially those utilising natural solutions like sand dunes, are encouraged where possible. As these are land-based developments, it is imperative that Regional Marine Plans do not contradict terrestrial development plans and that it is clearly established which parts of the coast are suitable for development, and where managed coastal change for flood defence or habitat restoration would be appropriate. Success will depend on how well the marine and land-based plans and policies are integrated, and how this is achieved (see chapter 3: Integration between marine and terrestrial planning for a detailed discussion of this issue).

21

The NMP is clear that sound scientific evidence and data should underpin management and decision-making. Much use is made of the assessment of the condition of the sea provided by Scotland’s Marine Atlas, but there is also ample acknowledgement that there are areas where there is currently a lack of data or consensus on what information is available. The need for additional research is identified in relation to a number of different marine sectors, notably fisheries. Policy FISHERIES 8 commits the Scottish Government to working with stakeholders through the Clyde 2020 research programme on ecosystem restoration, a positive step which should hopefully yield practical measures. This does depend upon sound mechanisms through which research findings are fed back into the marine planning system to inform practice, which itself is reliant on the exact system established for plan review (see chapter 4: Clarity on timescales for implementation, delivery and review for a fuller consideration of this issue).

12: Cumulative impacts

Cumulative impacts are considered in relation to a number of sectors and topics, but these are usually not phrased as such. In fact, the word ‘cumulative’ only appears three times in the entire NMP draft. There are also some areas where cumulative impacts could conceivably be an issue but where there is no consideration of such pressures in the Plan.

'Living within environmental limits' (pg. 40) is identified as a 'key issue' for marine planning, and it is noted that development and activities within the marine environment can impact on a temporal, short term or permanent basis. The only reference to cumulative impacts on the environment is in relation to the GES, and the need to assess the potential impacts on this status from proposals.

Policy GEN 5 encourages the shared use of marine space for developments. While there is textual consideration of incompatibility or mutual exclusion, there is no discussion of the potential cumulative impacts of a policy of co-location. This is matched by some of the Sector chapters and their support for the development of 'utility corridors' for underwater infrastructure. While this would offset development pressures elsewhere, it could potentially lead to localised overdevelopment. There is however no acknowledgement of the potential for cumulative impacts. Similarly, policy GEN 14 seeks to protect the quality of seascape and landscape by taking into account visual impacts of development. Again, however, there is no consideration of the cumulative aspects of visual impact or its potential to incrementally damage scenic qualities.

Recommendation 22

There should be clearer acknowledgement of the potential for adverse cumulative impacts in the NMP. This could be achieved through a stand-alone general policy, or through a number of policies which address the particular cumulative risks associated with specific sectors.

22

13: Summary and conclusions

This independent investigation has focused its analysis on the key themes identified by the previous consultation response research, and has sought to establish how these issues have been addressed in the draft NMP, how effective these approaches have been, and if changes should be made for the production of the finalised document.

Broadly speaking, the NMP has been successful in covering an exceptionally broad and varied topic area. It presents an ambitious and optimistic range of policies intended to maximise the benefits of the marine environment and the resources it contains. While these are largely coherent and sound, there are areas in which the draft document could be improved.

Overall, the draft document would benefit from a stronger focus on ease of comprehension and use, which could include a restructuring or reformatting of policies, with more cross-referencing and a more consistent and logical integration of supporting information and background material.

With regards to the identified key themes, the major areas in which the NMP could be improved are:

greater detail on the actual mechanisms, systems and processes that will allow the marine planning system to operate in practice;

explicit timescales on which these will occur; clarification of the relationship between the regional and national marine plans, and

between the marine and terrestrial planning systems; clarification of the reciprocal connections between the NMP and its legislative,

regulatory and policy context; more explicit and consistent definitions and terminology; and greater consideration of

the potential for cumulative impacts

On the specific topic of fisheries, there are potential benefits from a redrafting of policies, but also from a stronger affirmation of support for the industry and greater clarity on the future management and regulatory regime that it will be subject to. A related but more widely applicable recommendation is that existing elements of current marine environmental management which are demonstrably successful, such as cross-sector agreements, should be preserved wherever possible in the marine planning system that is eventually established.

23

Appendix 1: English East Inshore and East Offshore Marine Plans Fisheries policies and context

3.16 Fisheries

Context

The Marine Policy Statement explicitly expresses support for the fishing sector, and is aware of many issues that the industry faces such as displacement, seeking solutions such as co-location of activity wherever possible. The Marine Policy Statement states that ‘the United Kingdom has a long history of fishing in both inshore and offshore waters which the United Kingdom administrations wish to see continue’ (Marine Policy Statement 3.8.1). The term ‘fishing activity’ (as used in FISH1 below), includes any activity undertaken by licensed, commercial fishing vessels. In the East Inshore and East Offshore Marine Plan Areas fishing takes many forms, with some types reliant on particular grounds that are fished seasonally and others being nomadic in nature. The mobility of the fishing sector is dependent on stock behaviour and migratory patterns together with any individual vessel or crew logistical limitations, such as the size of vessel and its capacity to remain at sea overnight, or for numerous days or weeks. Off the Suffolk coast there are predominantly inshore fisheries based on small concentrations of vessels under ten metres in length operating from several locations using a variety of fishing gear and methods to target different species (for example bass in summer and cod and rays in winter). Around Norfolk smaller vessels target mainly crab and lobster offshore whilst activity in the Wash is focussed on shellfish – primarily cockle, mussel and brown shrimp. There are a mix of smaller vessels inshore and much larger vessels operating offshore working out of Grimsby and Hull, together with a clustering of locally significant processing facilities in King’s Lynn, Boston and Cromer, that offer economic and social benefits in terms of numbers employed onshore well beyond those active within the sector at sea. Activity off the Holderness coast up to Flamborough supports a large number of vessels, particularly in the shellfish sector, although other species are targeted. Bridlington is host to the most significant shell-fishery in the United Kingdom and is the most significant lobster fishery in Europe. Onshore activities associated with fisheries include important market, processing and infrastructure facilities. Locations include Grimsby and Lowestoft where these activities have greater local significance than fishing activity alone. Fishing also provides additional benefits including contributing an important source of protein which can be part of a healthy diet (see SOC1) and contributing to food security. It is also recognised that the fishing industry is an important part of the character of many coastal towns; a factor which is further addressed under SOC3. The installation of structures within the marine area may bring about changes to the local habitat, which in turn can contribute towards the enhancement of the existing environment/habitat. However these enhancements may not be immediate and may accrue over a period of time, which in itself may be significant; these changes and any arising benefits have to be viewed against any adverse impact that may arise as part of their installation.Note that issuing a general licence to fish may be considered as a ‘proposal’ under the Marine and Coastal Access Act (S 58(1)). However, where an individual wishes to act in accordance with the terms of an existing licence or other consent , that individual would not be required to inform or seek any additional permission from a public authority (where consistent with current practice). This means that a fisher who elects to fish a new area that is consistent with the conditions of their general licence to fish, is not caught by the term ‘proposal’ as used in the East marine plans. Bringing forward a fisheries management measure such as a bylaw falls under either section 58(1) or 58(3) of the Marine and Coastal Access Act depending on whether the measure is to do with an authorisation and enforcement decision or not. However in either case, there will be other existing legislative and management requirements that determine the decision and which may carry greater weight than the plan policies.

24

Signposting to existing policy and measures

The Common Fisheries Policy provides the main framework for the management of fisheries in European Union waters. It is supported by national and locally applied legislation including bylaws delivered through the Inshore Fisheries Conservation Authorities and others. The Common Fisheries Policy has now been revised and its implementation should contribute to the delivery of the effective management of our seas and be integrated into wider marine policy including marine nature conservation. Fish stocks are principally managed by the Marine Management Organisation, with Inshore Fisheries and Conservation Authorities sharing the role between 0 – 6 nautical miles. Management measures include setting quota limits and effort/ technical control measures. Quotas (or total allowable catches) are set annually for over 130 fish stocks, by taking account of various factors including the latest scientific advice on the condition of the stocks. Due to the annual variability of stock condition, stock management requires a degree of temporal flexibility. For this reason, reactive, annual management measures (such as quotas) are considered a more appropriate mechanism than marine planning to manage fish stocks. On the 14 August 2012, the Department for the Environment, Food and Rural Affairs announced a revised approach to managing fishing activities within European Marine Sites. The Marine Management Organisation has been working closely with the Inshore Fisheries Conservation Authorities, the Department for the Environment, Food and Rural Affairs, Statutory Nature Conservation Bodies, Non-Governmental Organisations and the fishing industry to prioritise high-risk fishing activities on sensitive features.Management measures have been put in place to protect the features most at risk, (reef, maerl and seagrass, listed as ‘red’ in the risk matrix), at the end of 2013 to avoid the deterioration of Annex I features in line with obligations under Article 6(2) of the Habitats Directive. Risks rated as either amber or green (medium or low risk) will have a site-level assessment to assess whether management of an activity is required to conserve site features. These assessments will be consistent with the provisions of Article 6(3) of the Habitats Directive and will be implemented in 2016. It is envisaged that the Marine Management Organisation will work together with key partners to increase the understanding of the sensitivity of different habitats to different fishing gear types. Potential management measures for Marine Conservation Zones by all public authorities responsible will also need to assess the impacts of fishing. It is proposed by the Marine Management Organisation that the development of future fisheries management measures for European Marine Sites and Marine Conservation Zones will be based on a regional approach to allow for the consideration of all sites and restrictions in a particular region at the same time. This will help to assess potential cumulative displacement of fishing and cumulative impacts across multiple sites.

Evidence

The current data available on fisheries is varied and unfortunately does not provide a complete view of fishing activity with a high degree of accuracy. Data showing the activity of under ten metre vessels in the inshore area is particularly limited, yet these make up a large proportion of the fleet. Work is underway to establish an improved evidence base of fishing activity, together with other sectors, in order to address these limitations. The lack of uniformity and stakeholder consensus regarding fisheries data combined with the difficulties in predicting the future of fisheries, makes formulating prescriptive marine plan policies for this sector a challenge. The Marine Management Organisation will continue to work closely with the fishing sector to assess how this challenge might be addressed in the future. Significant issues identified through the Evidence and Issues Report included avoiding displacement wherever possible, environmental impact, navigational safety and access to onshore facilities. Possibilities for the co-location of fisheries with other sectors are highlighted within GOV2 under objective 10, together with a cross-sectoral policy on displacement (GOV3), with access to infrastructure addressed in GOV1. In addition to these, there are two plan policies specific to the

25

sector addressing the significant issues of access to fishing grounds and protection of spawning and nursery areas. The environmental impact of certain fishing gears on sensitive habitats is highlighted above under ‘signposting existing policies and measures’. Further information on data and evidence regarding fishing activity can be found in the Evidence and Issues Report and information on how figures 23 – 26 were derived can be found on the Marine Management Organisation website.Further information on evidence gathering in relation to the development of current and future marine plans can be found under Objective 11 in chapter 2.

Policy FISH1

Within areas of fishing activity, proposals should demonstrate in order of preference: a) that they will not prevent fishing activities on, or access to, fishing grounds b) how, if there are adverse impacts on the ability to undertake fishing activities or access to fishing grounds, they will minimise them c) how, if the adverse impacts cannot be minimised, they will be mitigated d) the case for proceeding with their proposal if it is not possible to minimise or mitigate the adverse impacts

Plan policy applies to both the Inshore and Offshore Marine Plan Areas. In reading this policy, please note the introduction to chapter 3 which explains the scope, application, structure and content of plan policies.

Justification/Explanation

This plan policy supports fishing activity by avoiding adverse impacts resulting from development and activities in the East marine plan areas. The policy will be implemented by the public authorities responsible for authorising such developments or activities. Fishing grounds in the East marine plan areas are considered to play an important role in the delivery of a variety of marine food sources. The East marine plan areas contain some of the most important shellfish grounds in England making a significant, direct, economic contribution with much of its catch including crab, lobster, cockles and prawns exported to other markets both in Europe and beyond. Associated with this are a number of land-based catch processing and handling facilities throughout the East marine plan areas dealing with finfish and shellfish both caught within the marine plan areas, such as at King’s Lynn and that landed from further afield, such as in Grimsby. These facilities offer significant employment opportunities within their locality and beyond. This policy focuses specifically on the access to fishing grounds. It seeks to support the fishing sector’s ability to undertake its activities and requires proposals to demonstrate where any impacts to fishing activity may occur and how they have been dealt with. Where these issues cannot be resolved they would be detailed with an explanation as to why they cannot be overcome and any mitigation measures, thereby allowing decision-makers to assess the impacts to fishing activity posed by any development, with the aim to support fishing activity and co-location in accordance with the aspirations of the Marine Policy Statement. The requirement under d) in policy FISH1 is to provide information for consideration by the relevant public authority. It does not indicate that approval of the proposal will follow by default. In deciding on the proposal, the public authority will take account of a range of relevant considerations including compliance with legislation and regulations and potential impacts highlighted in project level assessments.FISH1 applies to the whole of the plan areas both inshore and offshore. The indicative maps included at figures 23, 24, 25 give an illustration of some of the known areas of fishing activity within the plan areas. Due to the variation in fishing activity, seasonality and technologies deployed (including the use of fishing vessel telemetry systems) these alone cannot provide a complete illustration of all fishing activity at all times. Proponents will need to liaise with the fishing sector locally to fully appreciate the level of activity.

26

As outlined in the context above there is significant variety and volume of activity in the East marine plan areas that is predicted to increase over the lifetime of the marine plans, particularly in terms of marine renewables and other offshore installations. The Marine Policy Statement (3.8.1, 3.8.2, and 2.3.1.5) makes clear that the process of marine planning will ‘enable the co-existence of compatible activities wherever possible’, and supports the reduction of real and potential conflict as well as maximising compatibility and encouraging co-existence of activities. Co-existence is addressed further under GOV2. Also in applying this policy, consideration will need to be given to the potential for the displacement of fishing activity. See also GOV3. Public authorities will need to ensure that supporting information is submitted, proportionate to any proposal, illustrating any potential impacts (this may include consultation to identify issues at scoping stage) and suggested measures to minimise, or if impacts cannot be minimised, mitigate them. Consultees could include such organisations as: • Inshore Fisheries and Conservation Authorities • Centre for Environment, Fisheries and Aquaculture Science • National Federation of Fishermen’s Organisations • New Under Tens Fishermen’s Association or the • North Sea Advisory Council Therefore in applying this policy consideration will need to be given to the potential for the displacement of fishing activity. See also GOV3.

Policy FISH2

Proposals should demonstrate, in order of preference: a) that they will not have an adverse impact upon spawning and nursery areas and any associated habitat b) how, if there are adverse impacts upon the spawning and nursery areas and any associated habitat, they will minimise them c) how, if the adverse impacts cannot be minimised they will be mitigated d) the case for proceeding with their proposals if it is not possible to minimise or mitigate the adverse impacts

Plan policy applies to both the Inshore and Offshore Marine Plan Areas. In reading this policy, please note the introduction to chapter 3 which explains the scope, application, structure and content of plan policies.

Justification/Explanation

The Marine Policy Statement (3.8.6) states ‘sustainable fish stocks have the potential to maintain a prosperous and efficient fishing industry and provide social, cultural and economic benefits to often fragile coastal communities’. Stakeholders from the fisheries sector have strongly expressed the need to support the recovery of fish stocks through all possible means, in order to ensure the sustainable future of the industry. A sustainable fishing industry relies upon fish spawning and nursery areas to support stock recruitment and these spawning and nursery areas need protection from adverse impact that may result from development or activity. Concerns exist as to the potential for new activities to have adverse effects on stock recruitment and the associated fishing grounds through development. FISH2 seeks to contribute to the aims of the Marine Policy Statement (3.8.1) in supporting the long term existence of the sector through support of stock recruitment. In applying policy FISH2, proposals should consider their potential to have an adverse impact on spawning and nursery grounds (including any adverse impact on the ability of species to access these grounds). Over half of the East marine plan areas (56%) is defined as high intensity spawning areas for plaice, over a third high intensity spawning areas for sand eels and whiting with over 11% a high intensity nursery ground for cod. The ‘indicative’ map shown in figure 26 highlights some known spawning and

27

nursery grounds in the East plan areas and should be viewed alongside the policy text. However, the map does not show all the species relevant to this policy due to limited evidence. Spawning and nursery areas for all finfish and shellfish species should be considered during project level assessments. The data shown in figure 26 is of a coarse resolution and data collected at a project level to support Environmental Impact Assessments will be current and at a more appropriate resolution to accurately assess any project’s impact on nursery and spawning grounds. Information on the location of areas closed due to a high abundance of juvenile fish (either seasonal or ‘real-time’ closures) can be found on the Marine Management Organisation’s website.Public authorities will need to ensure that supporting information is submitted, proportionate to any proposal, illustrating any potential impacts (this may include consultation to identify issues at scoping stage) and suggested measures to minimise or mitigate them. The requirement under d) is to provide information for consideration by the relevant public authority. It does not indicate that approval of the proposal will follow by default. In deciding on the proposal, the public authority will take account of a range of relevant considerations including compliance with legislation and regulations and potential impacts highlighted in project level assessments.

28

Appendix 2: Summary of phone interview with Bertie Armstrong, Scottish Fishermen’s Federation

Had three key points:

1: Even-handedness

Not against change per se, but against a policy preference. As a point of principle, there should be nothing in the Plan which gives preference or

precedence (whether deliberate or accidental) to incoming over existing activities, especially when the latter support often fragile communities.

They don’t seek a preference for themselves, only a level playing field. Discussions with the Scottish Government have established that there is no intention that

fishing be placed behind other activities, but they still see the potential for the Plan policies to be interpreted as such.

Rather than assurances from individuals that fishing will not be disadvantaged in practice, this should be prevented through explicit wording of the policies in the NMP.

2: Established management systems and processes should not be interfered with

The Plan should avoid interfering with working arrangements currently in place, through the reinvention of existing regulation or the gratuitous application of extra layers or constraints. The results could be dysfunctional.

Any system of management and regulation must conform to the CFP, and consider the sea in its totality, rather than a narrowly-focused regional approach.

There needs to be recognition of the hierarchy of plans which impact on fisheries management. Any plans must take account of any layers above, and should not create conflict or confusion between different layers or geographical areas.

3: Additional layers of regulation should be avoided

Regional marine planning could potentially result in extra layers of regulation and fisheries management.

The fear with extra layers of regulation is that it can bring into play more people that have little or no knowledge or understanding of fishing and fisheries management.

There is a complete lack of clarity in the NMP regarding the RMPs and regional marine planning authorities.

While it sounds good on paper to involve local stakeholders in marine management, there are no safeguards over who is involved in decision-making. If a broad definition is applied, NGOs and other campaign groups could influence decision-making in ways which directly threaten the industry.

There needs to be greater care that ‘genuine stakeholders’ are involved in regional marine planning, drafting RMPs, management and decision-making.

As a supporting argument, additional regulation requires additional staff and resources, which costs money which is in short supply. Additional public costs should be avoided wherever possible. The additional regulation may itself ultimately fail through insufficient resources.

Other points

The Plan should be as simple as possible; clear, concise and a practical resource that can be used on an everyday basis.

29

There needs to be greater detail about the practical aspects and plausible mechanisms for managing the marine environment.

It is possible to form agreements between sectors to manage the marine environment. There were concerns that the development of the oil and gas industry in Scottish waters could pose serious threats to fisheries, but through time a relationship has been forged between government, licensing authorities, the oil and gas industry and fisheries.

30

Appendix 3: Summary of phone interview with Archie McFarlane, Clyde Fishermen’s Association

On the subject of ‘sustainable development’, policy GEN 1 and its relationship with fisheries

Fishing is not considered a sustainable activity by many people, and he would include the Scottish Government and Marine Scotland among them.

Policy GEN 1 could be interpreted as support sustainable developments (not including fishing), and their use thereafter.

GEN 1 can mean anything you wish it to mean-‘ambiguity by design’. If there was a genuine appetite for protecting existing economic activities, why not state it? GEN 1 is the first principle of the NMP, and everything follows from it. If there is no mention of

existing economic activities, which not only includes fisheries but also the likes of shipping, then it could be argued legally in the future that these are not covered by the policy.

On the subject of conformity with the MPS

Licensing has been conducted against the provisions of the MPS.

On a regional model of marine planning and fisheries management

There is an existing structure for fisheries management: regulations set by the EU cascade down to member states, the UK in this instance, and are subsequently devolved to Scotland. Marine planning should have no involvement with this arrangement.

Generally the central bodies have more experience and knowledge, albeit not always perfect. Any deficiencies at the national level worsened at the regional, especially regarding

knowledge of fishing and the influences there will be on decision-making. There is the potential for input at the regional marine level from planning individuals with poor

or limited understanding of how fisheries operate in practice. There is also the potential for regional marine planning authorities’ management decisions to

be influenced by external agents with their own agendas or special interests. This could include environmental and other pressure groups opposed to fishing activities, but also non-association fisherman seeking to gain commercial advantage by determining who can fish and where.

This will require careful consideration of the structure and membership of regional marine planning bodies, with safeguards over who is defined as a ‘stakeholder’.

On potential solutions

Giving existing economic users of the marine environment increased policy protection, which could theoretically be achieved by ‘the insertion of a few words’, i.e. more explicit, inclusive wording.

Stronger and more explicit recognition and support for the objectives and policies of the MPS. Regional marine planning authorities could be made to work, with the right structures,

planning staff and decision-makers. This will require careful structuring and nurturing, so that the people involved have a genuine understanding of fisheries consideration of the membership, with training to ensure that there is a body of specialist knowledge within the organisation, and safeguards over who is defined as a ‘stakeholder’ and who has decision-making powers.

31