Muddied waters: to what extent is the marine environment relevant to determining a planning application?

In a recent Ombudsman decision, a complaint regarding the determination of a planning application was upheld because the Council refused permission on grounds connected to the marine environment - considered to fall out with the remit of the planning authority.

Such grounds instead were a matter for consideration by Marine Scotland in deciding whether or not to grant any marine license requiredfor the development. (Note the decision does not give any further details as to the nature or scale of the development).

The planning authority were also criticised for failing to refer to the Scottish Government's Circular on Marine Planning.

So, where does a planning authority's remit end and Marine Scotland's begin?

The easy answer, certainly from a physical perspective, is that planning authorities' jurisdiction runs to the Mean Low Water Springs (except in the case of marine fish farming, where it extends to 12 nautical miles). While Marine Scotland has responsibility for marine planning, conservation and licensing from the Mean High Water Springs out to 200 nautical miles.

This means that in the intertidal zone the jurisdictions of terrestrial and marine planning overlap.

But in terms of the marine licensing legislation public authorities must, in carrying out any statutory function which affects the Scottish Marine area, act in a way best calculated to further the achievement of sustainable development.

And the Circular emphasises that this applies to terrestrial planning functions which affect the Scottish marine area in the same way as it applies to marine planning functions.

From planning officers' perspective, how can this duty be discharged without stepping on toes? The answer likely lies in careful articulation in the Report on Handling (or comparable document or correspondence) to show that the marine environment has been taken into account from the perspective of ensuring sustainable development but without pre-judging the need for a marine licence in reaching their decision.

That a particular planning permission might be of a limited value without a licence for corresponding development or operations in the marine area sits comfortably within the existing consenting framework, in the same way that planning, building control, licensing and environmental consenting are all separately regulated and administered.