Development management and Nature Conservation Marine Protected Areas

1. Introduction

The Scottish MPA network consists of a number of different types of Marine Protected Areas (MPAs) which are designated under various legislative frameworks and include Nature Conservation MPAs, Special Areas of Conservation, Special Protection Areas, Sites of Special Scientific Interest, and Ramsar sites. This note provides NatureScot staff with guidance on handling casework affecting Nature Conservation MPAs designated under the Marine (Scotland) Act 2010 only, and for simplicity will be referred to as MPAs throughout. This document should be read in conjunction with  our Development Management and the Natural Heritage guidance. It does not apply to Demonstration and Research MPAs and separate guidance is available for  European Sites. Please note that some hyperlinks will relate to internal documents and are not accessible to external customers. Should there be any queries about this, please contact NatureScot through our website.

The guidance should be used by all case officers dealing with MPA casework. Specialist advice should be sought as required for relevant topic areas from advisors in Sustainable Coasts and Seas in the first instance in situations where the case officer is uncertain about the possible effects of a proposal or the sensitivities of protected features which might be affected (see our Specialist Work page for contact details). 

In most MPA casework, NatureScot will be providing advice to regulators and developers. Usually, the regulator will be Marine Directorate Licensing Operations Team (MD LOT), but we may also provide advice to other regulators including SEPA, Planning Authorities and Transport Scotland.

Clarification on the main differences and similarities between European Sites (Special Areas of Conservation (SACs) and Special Protection Areas (SPAs) and MPAs is provided in Annex 3.

2.  Background

Information about our role and advice provision in relation to MPAs can be found on our website. There are also webpages that provide information about Scotland’s MPA network, MPA selection and new designations, advice and guidance on MPAs, including this development management advice, and survey and monitoring. 

Policy approach

Areas designated as MPAs receive legal protection as set out in the Marine (Scotland) Act 2010.  Sites that are the subject of public consultation are called ‘possible MPAs’ (pMPAs).  These pMPAs are given policy protection from the point at which public consultation on a site is announced until Scottish Ministers decide on whether or not to designate. This means that they should be treated like a designated MPA by regulators and consultees while the consultation and decision-making processes are underway.

Designated MPAs and pMPAs are “protected areas of national importance for their natural heritage” as described in NatureScot’s Guidance – Identifying Natural Heritage issues of National Interest in Development Proposals. We must apply our balancing duties when offering advice on a proposal which affects a MPA and further information on how to do this is available in NatureScot’s balancing duties guidance. NatureScot delegate authority to approve outright objections to Directors for MPAs.  Further clarification on the sign-off routes for objections for marine casework for MPAs is provided in section 3.2.3 of the Development Management and the Natural Heritage guidance. 

MPA proposals are sites which have been formally recommended to Scottish Government by NatureScot and/or JNCC but have not yet progressed to public consultation. MPA search locations are those that are still under assessment by NatureScot and/or JNCC but a formal recommendation has not been made. MPA proposals and MPA search locations do not have the full policy protection given to pMPAs, but Marine Directorate has advised that they should be taken into account in Environmental Statements and other licensing or consenting processes. When we advise on casework involving MPA proposals or MPA search locations we should highlight the status of the sites and identify the features for which they are being considered; we should provide advice on potential impacts on these features, but highlight any particular data limitations in these considerations.  Our responses to MPA proposals or MPA search locations should generally be in the form of advice only.  If there is a risk that impacts associated with a proposal may render the feature no longer suitable for designation within that site we should highlight this in our advice (and copy that advice to Marine Directorate Biodiversity Policy (marine_biodiversity@gov.scot) if they are not the regulator). Note that we consider the MPA network to be adequate with regard to the current evidence available.

Details of MPAs and pMPAs are available on SiteLink and geoView.  

3. General duties of public authorities

The Marine (Scotland) Act 2010 Act states that public authorities must exercise their own functions in a way, where possible, that furthers the conservation objectives of a MPA.  If this is not possible, then they should exercise that function in a manner that least hinders the achievement of the conservation objectives. If the public authority believes that the exercise of a function could significantly hinder the achievement of the conservation objectives of a MPA then they must inform Scottish Ministers and the relevant statutory nature conservation body.

Also, where a public authority has the function of determining an application (whenever made) for the authorisation of the doing of any act and it believes that the act could significantly hinder the achievement of the conservation objectives of a MPA then they must notify the Scottish Ministers and (if appropriate) NatureScot and/or JNCC. 

4. Assessing proposals affecting MPAs

The Marine Scotland (2010) Act sets out the process for public authorities with regulatory functions to follow when they are making licensing and consenting decisions affecting MPAs, for example when Marine Directorate is considering a Marine Licence application. 

The first test, initial screening is for the regulator to decide whether the proposed activity and/or development is capable of affecting, other than insignificantly, the protected features of a MPA. This step can be viewed as an initial screen to remove activities from further consideration, where relevant. For example, if there is no overlap between a proposal and the MPA and the proposal does not exert any pressures that the protected features in the site could be sensitive to, it can be screened out from the need for further consideration.

If the proposal is not screened out at this first test, the regulator must consider the second test, i.e. whether there will be a significant risk of the activity hindering the achievement of the conservation objectives for the MPA.  The regulator can grant authorisation if it is satisfied that there will not be a significant risk.  If the regulator can’t determine that there will be no significant risk of the activity hindering the achievement of the conservation objectives, authorisation can still be granted if the regulator is satisfied that:

• there is no alternative that would have a lesser impact on the conservation objectives of the MPA; and
• the public benefit outweighs the environmental impact; and
• the applicant will arrange for measures of equivalent environmental benefit to offset the anticipated damage.

5. The role of NatureScot

NatureScot is most likely to become involved in MPA casework when a proposed activity requires a licence or other consent from a regulator.  We should provide the regulator with clear advice on two tests:

1. Whether the proposed activity and/or development is capable of affecting, other than insignificantly, the protected features of a MPA; and if so
2. Whether there will be a significant risk of the activity hindering the achievement of the conservation objectives for the MPA.

The process of working through the two tests is set out in the flow chart in Annex 2.

In a small number of cases we might be consulted where the regulator is considering issuing a licence or consent despite there being a significant risk of the activity hindering the achievement of the conservation objectives for the MPA.  Where this is the case and they can satisfy the regulator that there are no other means of proceeding that would have a substantially lower risk of damage, and the benefit to the public outweighs the risk of damage, NatureScot may be asked to comment on the adequacy of the measures of equivalent environmental benefits (MEEB). These are the measures that are required to address the damage which the act will or is likely have on the MPA. NatureScot might also be asked to advise another public authority in relation to the impact of the authority’s own functions or activities on an MPA. 

In both these circumstances specialist advice from advisors in Sustainable Coasts and Seas should be sought (see our Specialist Work page for contact details). They may also request advice from advisors/managers in Marine Ecosystems as needed. There is guidance on Seeking casework Advice from specialist advisers. Any advice provided to other NatureScot staff must be clear, simple to use, focussed on significant issues and be proportionate. Further advice on providing casework advice to other NatureScot staff is available in Guidance Note – Providing Casework Advice.

JNCC has responsibility for providing advice on MPAs beyond 12 nautical miles (nm). If case officers are of the view that the activity NatureScot has been consulted on overlaps with JNCC’s jurisdiction, they should liaise with JNCC  (see contacts for Marine Management staff) and relevant NatureScot specialist advisers (as required). This is to ensure continuity and agreement on the lead and approaches for the. Please note though that in 2017 JNCC delegated the responsibility for responding to marine renewable energy developments to NatureScot. This means that NatureScot will provide all advice relating to such projects, seeking advice only from JNCC in respect of any potential impacts to MPAs beyond 12nm.

6. Providing advice

Pre-application engagement

This section provides advice on how to ensure that potential impacts on MPAs are considered by developers and others at an early stage in the planning of a development. This pre-application consideration can help to speed up later stages of the consenting process and provides us with an opportunity to influence the outcome to the benefit of the natural heritage.

Part 2 of NatureScot’s Development management and the natural heritage guidance provides guidance on NatureScot’s role in support of development and regulations including on engagement at pre-application and for EIA and should be read in conjunction with this MPA guidance.

When we are contacted by developers at the pre-application stage we should check that they have also contacted the appropriate determining authority/authorities – if not we should encourage them to make contact. If it is not possible for the authority/authorities to attend meetings with developers, in agreement with the developers, we should copy significant correspondence to them. If a proposal could affect the marine environment out with territorial waters (beyond 12 nm) we should ensure that JNCC are involved in pre-application discussions.

What advice should/can we provide for MPAs?

Our ability to provide advice on impacts on MPAs will depend on the level of detail provided about the proposed marine activity or development.  It is also limited by scientific understanding of some impact mechanisms and feature sensitivity, and the degree to which existing data on the protected features of the site are sufficient to provide a clear view on the potential impacts. For example, broad scale mapping of marine habitats is frequently at too coarse a scale to allow detailed advice from us, and so more detailed survey may be required to inform our advice. It is suggested that we provide the following levels of advice, where relevant:

1. Information sources on MPAs, including boundaries, protected features, conservation objectives, management advice and sensitivities (see  Sources of Information section).
2. Which MPAs are relevant and could be affected and need to be considered further in the assessment process.
3. Preliminary advice on the proposal including whether the proposal is capable of affecting any protected features, other than insignificantly. This will include preliminary advice on whether there is a significant risk of hindering the conservation objectives, as well as advice on any potential cumulative impacts that should be assessed.
4. Whether specific survey is required and, if so, provide initial advice on an appropriate survey methodology.
5. Any mitigation that could avoid a significant risk of hindering the conservation objectives.

As NatureScot’s advice becomes more detailed through these stages it is more likely that you will require advice from specialist advisers. 

We should agree with the developer and/or regulator on the written record of the key issues and points of discussion, and any requirement for further information and/or mitigation. We should also explain the need for carrying out the required assessments.

The standard responses in section 5.6 of the Development management and the natural heritage guidance may be used for reference in the pre-application stage but the formal wording must not be used at this stage.  Advice that NatureScot might object to a proposal should be discussed in advance with the appropriate manager (as outlined in the Development management and the natural heritage guidance).

Sources of information

There are many publicly accessible sources of information, guidance and good practice to which we should refer developers. 

Site specific information is available through:

• SiteLink provides easy access to information on MPAs. Information on the protected features and the Conservation and Management Advice documents (see below).
  • geo.View provides NatureScot staff the boundaries of MPAs and access to GeMS
  • NatureScot Open Data Hub allows the public to download a wide range of the spatial data held by NatureScot including MPA boundaries.
  • The Geodatabase of Marine features adjacent to Scotland (GeMS) provides information on the known recorded distribution of PMFs and MPA search features in Scottish waters. GeMS is available to download on our NatureScot Open Data Hub and is the most up-to-date source of information available in GIS format.
  • Conservation and Management Advice (CMA) documents - these provide site-specific information on protected features in relation to the conservation objectives and management advice for activities considered capable of affecting the protected features of the site. Further guidance is provided in section 7. A summary of those published on Sitelink and those in draft is available here (also includes status for SACs, SPAs). Draft CMAs are available by contacting MPA@Nature.scot   All CMA documents will be published by the end of 2024.
  • ‘Data confidence assessments’ and ‘Assessments against the MPA selection guidelines’ are available for each MPA. Links are provided on the right-hand side of each site’s page on Sitelink (see Clyde Sea Sill MPA for an example). However, it should be noted that these are static documents which were up-to-date at the time of site designation.  For current research and information since designation refer to NatureScot publications and GeMS.

 Wider information (i.e. non-site specific but still relevant) is available through: 

• National Marine Plan Interactive (NMPi) and Marine Scotland Information (MSI) – These are Marine Directorate’s two data portals.  NMPi is Scottish Government's interactive marine planning tool which has been designed to support development of the National Marine Plan and forthcoming work on regional marine planning.  It contains downloadable data layers on MPA boundaries and it is possible to view data on marine habitats and species.  MSi contains environmental data in several themes relating to on-going work in Scotland's seas including monitoring and planning for renewables.
• Feature Activity Sensitivity Tool (FeAST) - FeAST is an online sensitivity tool which is useful for determining the sensitivity of protected features to various pressures. FeAST enables users to explore what is known about MPA protected feature sensitivities to pressures, and the marine activities that can cause them. It highlights activities that can give rise to a range of pressures (physical, chemical and biological. The assessment of sensitivity is based on a feature’s tolerance (response to change) and its ability to recover. It may be useful for case work officers and developers as a tool for exploring information about MPA protected feature sensitivities in the vicinity of their proposed development/activity. More information regarding FeAST is available on the  NatureScot website. Note that there is an ongoing programme of work to increase the information available through FeAST and to update evidence for the existing assessments.
• Marine Life Information Network - MarLIN – similar to FeAST, MarLIN is a useful source for information on the likely sensitivity and resilience of species and habitats, which may be constituents of MPAs, to pressures.
• Regional Marine Plans - When available, Regional Marine Plans should provide an additional source of information, guidance and policy direction on sustainable development priorities at that regional level, with the Marine Planning Partnerships providing a forum for liaison between marine users/developers and environmental interests. 

Conservation Objectives

The conservation objectives form the basis of the assessment of whether or not the proposal will have a significant risk of hindering the achievement of the conservation objectives. 

The information that should be used to make this assessment is outlined within NatureScot’s Conservation and Management Advice (CMA) document for the site which are either published on Sitelink or as drafts available on request (see section 6.3 for further details. 

There are two categories of conservation objectives, ‘conserve’ and ‘recover’, which reflect our understanding of the status of the protected features. The conservation objectives seek to conserve the protected feature(s) of a MPA where evidence exists that it is in favourable condition in the site, or where there is uncertainty concerning the assessed condition of a feature but no reason to suspect deterioration in condition since designation. Where evidence exists that a feature is declining and/or damaged and therefore is in unfavourable condition in the site, the Conservation Objectives will seek to recover the protected feature.

The rationale for the decision on the conservation objective is outlined in the CMA document (sections 4, 5 and in more detail as required in Annex 1).

Consideration of test 1 and 2

For test 1 of the MPA appraisal, both the sensitivity of the feature, and magnitude of impacts from pressures (caused by activities) should be considered and useful information can be found in the relevant MPA CMA document:

• Table 2 (section 7) provides NatureScot’s advice to support management for activities where we consider this may be necessary to achieve the conservation objectives for the protected features. The advice takes a risk-based approach where there is, or there is the potential, for an overlap between protected features and activities that cause pressures that the protected features are sensitive to. This advice is provided to support public authorities, regulators and others in managing these risks. It is based on existing data and information on protected features and relevant activities, and our understanding of the relationships between the features and activities. We have identified a range of management advice: management to remove or avoid pressures; management to reduce or limit pressures; or no additional management required. Section 7 also provides details of existing management in place for activities within MPAs.
• Section 6 provides an overview of the most relevant sensitivity information for protected features with further information in FeAST and for the some features not covered by FeAST, the Marine Evidence based Sensitivity Assessment (MarESA) on the MarLIN webpages are also useful.
• Annex 2 provides information on factors limiting the recovery of the protected features which may be useful for informing the assessment, e.g. in terms of the ability of features to recover from the impacts of a proposed activity.

Where test 1 provides a positive answer (capable of affecting), test 2 of the MPA appraisal must be completed, where the focus is on significant risk to the conservation objectives, and Annex 1 of the CMA provides site-specific information to help with this.

The information in the CMAs, FeAST and MarESA do not take into account the intensity, frequency or cumulative impacts from activities taking place at specific locations. Even if management advice for a protected feature is described and the feature is noted as sensitive to a pressure caused by a proposed activity, it does not automatically mean that the conservation objectives will be hindered. The CMA information and sensitivity information should be used as starting points for the MPA appraisal. 

7. Environmental Impact Assessments

Guidance on how to provide advice for EIA is included in our Development Management and the Natural Heritage guidance and includes pre-application engagement for EIA, as well as the appropriate approach to provide advice for the scoping stage and for EIA reports. This advice is also relevant for MPAs.  Information compiled for the EIA stages may also be sufficient and can be used to inform the MPA appraisal.  It is important to decide at an early stage whether you need any specialist support with the proposal at any point in the development management process. You should not wait for the application and EIA Report before calling on specialist advice. 

8. Using the MPA proforma

When we are consulted by a regulator on a proposal that could affect a MPA we will have to consider and advise on the tests set out in the Marine (Scotland) Act 2010.  A proforma is available (See Annex 1) to help you consider the tests and decide on the advice to provide. The proforma will also ensure that a structured audit trail is kept.  It is strongly recommended that you complete the proforma for casework affecting MPAs, particularly to set out the detail of the assessment in reaching our concluding advice in complex cases. The proforma includes embedded guidance to help you complete it and your appraisal and decide on NatureScot’s response. This text should be deleted once completed. 

9. Annexes