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Marine (Scotland) Act 2010

Type Act of the Scottish Parliament

Publication 2010-03-10

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API

Part 1 — The Scottish marine area

The “Scottish marine area”

1

(1) For the purposes of this Act, the “Scottish marine area” means the area of sea within the seaward limits of the territorial sea of the United Kingdom adjacent to Scotland and includes the bed and subsoil of the sea within that area.

(2) The boundaries between the parts of the territorial sea of the United Kingdom adjacent to Scotland and the parts not so adjacent are to be determined by reference to an Order in Council made under section 126(2) of the Scotland Act 1998 (c.46) to the extent that the Order in Council is expressed to apply for the purposes of that Act.

Enforcement of marine licensing regime

2

In this Act, unless the context otherwise requires, “sea” includes—

(a) any area submerged at mean high water spring tide,

(b) the waters of every estuary, river or channel, so far as the tide flows at mean high water spring tide.

(See section 66 for the meaning of “sea” for the purposes of Part 5.)

Part 2 — General duties

Sustainable development and protection and enhancement of the health of the Scottish marine area

3

In exercising any function that affects the Scottish marine area under this Act—

(a) the Scottish Ministers, and

(b) public authorities

must act in the way best calculated to further the achievement of sustainable development, including the protection and, where appropriate, enhancement of the health of that area, so far as is consistent with the proper exercise of that function.

Mitigation of and adaptation to climate change

4

In exercising any function that affects the Scottish marine area under this Act, the Climate Change (Scotland) Act 2009 (asp 12), or any other enactment—

(a) the Scottish Ministers, and

(b) public authorities,

must act in the way best calculated to mitigate, and adapt to, climate change so far as is consistent with the purpose of the function concerned.

Part 3 — Marine planning

Marine plans

National marine plan and regional marine plans

5

(1) The Scottish Ministers must prepare and adopt in accordance with schedule 1 a national marine plan for the Scottish marine area.

(2) The Scottish Ministers may prepare and adopt in accordance with that schedule a regional marine plan for any Scottish marine region (see subsection (5)).

(3) A national marine plan or (as the case may be) a regional marine plan is a document which—

(a) states the Scottish Ministers' policies (however expressed) for and in connection with the sustainable development of the area to which the plan applies,

(b) states the Scottish Ministers' policies on the contribution of—

(i) Nature Conservation MPAs (namely areas designated as such by order under section 67(1)(a)), and

(ii) sites falling within section 79(4),

to the protection and enhancement of the area to which the plan applies,

(c) states that it is a national marine plan or (as the case may be) a regional marine plan prepared and adopted for the purposes of this section.

(4) For the purposes of preparing a national marine plan or (as the case may be) a regional marine plan, the Scottish Ministers must—

(a) set—

(i) economic, social and marine ecosystem objectives,

(ii) objectives relating to the mitigation of, and adaptation to, climate change,

(b) prepare an assessment of the condition of the Scottish marine area or, as the case may be, Scottish marine region at the time of the plan's preparation,

(5) The Scottish Ministers may by order designate any part of the Scottish marine area as a Scottish marine region; and any such order must identify the boundaries of the Scottish marine region.

(6) A national marine plan or (as the case may be) a regional marine plan may also include statements or information relating to policies contained in the plan.

(7) If to any extent a policy stated in a national marine plan or a regional marine plan conflicts with any other statement or information in the plan, that conflict must be resolved in favour of the policy.

Conformity of marine plans with other documents

6

(1) A national marine plan and a regional marine plan must be in conformity with any marine policy statement currently in effect for the Scottish marine area, unless relevant considerations indicate otherwise.

(2) A regional marine plan must be in conformity with any national marine plan currently in effect, unless relevant considerations indicate otherwise.

(3) For the purposes of this Part, a marine policy statement is “currently in effect” for the Scottish marine area if—

(a) the statement has been adopted by the Scottish Ministers in accordance with Schedule 5 to the 2009 Act,

(b) the statement has been published in accordance with paragraph 12 of that Schedule,

(d) the Scottish Ministers have not withdrawn from the statement in accordance with section 48 of that Act, and

(e) the statement has not been withdrawn (by virtue of the withdrawal of the Secretary of State in accordance with that section).

Coming into effect of marine plans

7

A national marine plan or (as the case may be) a regional marine plan comes into effect when the plan is published by the Scottish Ministers in accordance with schedule 1.

Amendment of marine plans

8

(1) A national marine plan or (as the case may be) a regional marine plan may be amended from time to time by the Scottish Ministers.

(2) Any amendment of any such plan must be prepared and adopted in accordance with schedule 1.

Withdrawal of marine plans

9

(1) The Scottish Ministers may withdraw a national marine plan or (as the case may be) a regional marine plan where they consider it appropriate to do so.

(2) If they do so, they must publish notice of withdrawal in the Edinburgh Gazette; and the marine plan concerned ceases to have effect on the date of such publication.

(3) The Scottish Ministers must also take such further steps as they consider appropriate to secure that the withdrawal of the marine plan concerned is brought to the attention of interested persons.

(4) In this section, “interested persons” means—

(a) any persons appearing to the Scottish Ministers to be likely to be interested in, or affected by, the withdrawal of the marine plan concerned,

(b) members of the general public.

(5) Following withdrawal of a national marine plan, the Scottish Ministers must prepare and adopt in accordance with schedule 1 a new national marine plan for the Scottish marine area as soon as is reasonably practicable.

Effect of withdrawal from or of marine policy statement or of national marine plan

10

(1) Where the Scottish Ministers withdraw from a marine policy statement in accordance with section 48 of the 2009 Act, or a marine policy statement is withdrawn (by virtue of the withdrawal of the Secretary of State under that section), the withdrawal does not affect—

(a) the continuing validity or effect of a national marine plan or regional marine plan, or

(b) until such time as a new marine policy statement is in effect in relation to the Scottish marine area, the construction of any national or regional marine plan.

(2) Where the Scottish Ministers withdraw a national marine plan, the withdrawal does not affect—

(a) the continuing validity or effect of a regional marine plan, or

(b) until such time as a new national marine plan is in effect, the construction of any regional marine plan.

Duty to keep relevant matters under review

11

(1) The Scottish Ministers must keep under review the matters which may be expected to affect the exercise of their functions relating to—

(a) the designation of any area as a Scottish marine region,

(b) the preparation, adoption, amendment or withdrawal of a national marine plan or (as the case may be) a regional marine plan,

(2) The matters include—

(a) as regards a national marine plan—

(i) the physical, environmental, social, cultural and economic characteristics of the Scottish marine area and of the living resources which the area supports,

(ii) the purposes for which any part of the area is used,

(iii) the communications, energy and transport systems for the area,

(iv) any other considerations which may be expected to affect those matters,

(b) as regards a regional marine plan—

(i) the physical, environmental, social, cultural and economic characteristics of the Scottish marine region to which the plan applies and of the living resources which the region supports,

(ii) the purposes for which any part of the region is used,

(iii) the communications, energy and transport systems of the region,

(iv) any other considerations which may be expected to affect those matters.

(3) The matters also include—

(a) any changes which could reasonably be expected to occur in relation to any matter referred to in subsection (2),

(b) as regards a national marine plan, the effect that any such changes may have in relation to the sustainable development of the Scottish marine area, its natural resources, or the living resources dependent on the area,

(c) as regards a regional marine plan, the effect that any such changes may have in relation to the sustainable development of the Scottish marine region to which the plan applies, its natural resources, or the living resources dependent on the region.

(4) The reference—

(a) in subsection (2)(a)(i) to the cultural characteristics of the Scottish marine area includes a reference to characteristics of the area which are of a historic or archaeological nature,

(b) in subsection (2)(b)(i) to the cultural characteristics of a Scottish marine region includes a reference to characteristics of the region which are of a historic or archaeological nature.

Delegation of functions relating to regional marine plans

12

(1) The Scottish Ministers may give directions under this section which—

(a) designate any of the delegable functions in relation to a regional marine plan which would (apart from directions under this section) be exercisable by the Scottish Ministers,

(b) direct that the functions so designated (the “designated functions”), instead of being so exercisable, are to be exercisable by such delegate acting on behalf of the Scottish Ministers as is designated in the direction.

(2) The delegate so designated must comprise of—

(a) a person nominated by the Scottish Ministers, and

(b) one or more of the following—

(i) a public authority,

(ii) a person nominated by a public authority with an interest in the Scottish marine region to which the regional marine plan applies as the Scottish Ministers consider appropriate.

(2A) But the requirement in subsection (2) does not apply in relation to a delegate where—

(a) that delegate is either—

(i) Orkney Islands Council,

(ii) Shetland Islands Council, or

(iii) Comhairle nan Eilean Siar, and

(b) before making the direction, the Scottish Ministers are satisfied that there would be difficulty in nominating any other person described in that subsection in relation to the regional marine plan to which the direction applies.

(3) Where the Scottish Ministers designate delegable functions under subsection (1) to a group of persons, they must ensure that the group comprises—

(a) so far as reasonably practicable, representatives of persons with an interest in—

(i) the protection and enhancement of the Scottish marine region to which the regional marine plan applies,

(ii) the use of that region for recreational purposes,

(iii) the use of that region for commercial purposes, and

(b) any other persons that the Scottish Ministers consider appropriate.

(4) The Scottish Ministers may give a direction under this section only with the consent of any public authority referred to in subsection (2).

(5) Where the Scottish Ministers designate delegable functions under subsection (1) to a public authority, the direction must include—

(a) a statement of reasons setting out the grounds for designating the authority in preference to a group of persons,

(b) a requirement for that authority to consult on the exercise of its functions in relation to the Scottish marine region to which the regional marine plan applies with—

(i) representatives of persons with an interest in—

(A) the protection and enhancement of that region,

(B) the use of that region for recreational purposes,

(ii) any other persons that the Scottish Ministers consider appropriate,

(6) The delegate—

(a) must comply with the direction,

(b) is to be taken to have all the powers necessary to do so.

(7) In this section “delegable functions in relation to a regional marine plan” means the following functions in relation to any such plan—

(a) those under sections 5, 8 or 11,

(b) those under section 16 (monitoring etc. of implementation),

but excluding the excepted functions.

(8) The excepted functions are the following functions in relation to any such plan—

(a) deciding under paragraph 4 of schedule 1 whether to prepare and publish a statement of public participation,

(b) deciding under paragraph 6 of that schedule whether to revise a statement of public participation,

(d) deciding under paragraph 14 of that schedule whether to publish a regional marine plan or any amendment of such a plan.

Directions under section 12: supplementary provision

13

(1) Where the Scottish Ministers give a direction under section 12, they must publish it in such manner as they consider most likely to bring it to the attention of persons likely to be interested in or affected by it.

(2) For so long as any such direction remains in effect, the designated functions are exercisable by the delegate acting on behalf of the Scottish Ministers (and are not exercisable by the Scottish Ministers).

(3) But subsection (2) is subject to any provision to the contrary which—

(a) is made by the direction, or

(b) is included in a direction under section 14.

(4) A direction under section 12 may include—

(a) such terms or conditions,

(b) such obligations or requirements,

as the Scottish Ministers may determine.

(5) A direction under section 12 may make different provision for different cases, different areas or different delegates.

(6) The Scottish Ministers may make grants to a delegate for the exercise of the designated functions.

Directions to delegates as regards performance of designated functions

14

(1) This section applies where any functions are exercisable by a delegate by virtue of a direction given under section 12.

(2) The Scottish Ministers may from time to time give directions to the delegate with respect to the performance of the functions.

(3) Before giving any direction under this section, the Scottish Ministers must consult the delegate.

(4) A delegate given a direction under this section must comply with the direction.

(5) Where the Scottish Ministers give a direction under this section, they must publish it in such manner as they consider most likely to bring it to the attention of persons likely to be interested in or affected by it.

Decisions of public authorities affected by a marine plan

Decisions of public authorities affected by marine plans

15

(1) A public authority must take any authorisation or enforcement decision in accordance with the appropriate marine plans, unless relevant considerations indicate otherwise.

(2) If a public authority makes an authorisation or enforcement decision otherwise than in accordance with the appropriate marine plans, it must state its reasons.

(3) A public authority must have regard to the appropriate marine plans in making any decision—

(a) which relates to the exercise by them of any function capable of affecting the whole or any part of the Scottish marine area, but

(b) which is not an authorisation or enforcement decision.

(4) In this section—

(a) an “authorisation or enforcement decision” is any of the following—

(i) the determination of any application (whenever made) for authorisation of the doing of any act which affects or might affect the whole or any part of the Scottish marine area,

(ii) any decision relating to any conditions of any such authorisation,

(iii) any decision about extension, replacement, variation, revocation or withdrawal of any such authorisation or any such conditions (whenever granted or imposed),

(iv) any decision relating to the enforcement of any such authorisation or any such conditions,

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