Commence Consenting Process

Commence Consenting Process

Consents and licences required

There are a number of Acts and Consents relevant to the deployment of marine renewable energy technologies in Wales. Some of these consents will be applicable to all scales of marine energy development, others are only applicable to developments of a certain generation capacity (e.g. Electricity Act Section 36 consent). Early consultation with NRW’s Marine Licensing Team is advisable to determine necessary consents on a project by project basis. NRW offers developers a one-stop-shop for the Marine Licensing process in Wales, advice on other licensing requirements and has a close working relationship with the Marine Management Organisation (MMO) with regard to the Section 36 consent.  

Disclaimer: Please note that the list below is not exhaustive and there may be other relevant consents which may need to be obtained. Please also note that Marine Energy Pembrokeshire company accepts no liability for the content of this consenting guidance or for the consequences of any actions taken on the basis of the information provided.

Marine Licence Natural Resources Wales  Marine Licensing Team

From April 2013 the Marine Licensing Team (MLT) within the Regulatory side of Natural Resources Wales (NRW) has undertaken  marine licensing functions on behalf of Welsh Ministers, The marine licensing system under Part 4 of the Marine and Coastal Access Act 2009 (MCAA) has been in force since 6 April 2011 and prior to April 2013 was administered directly within the Welsh Government, by their Marine Consents Unit (MCU).

 In addition to marine licensing requirements some activities may also require consents issued by other regulatory authorities, for example for any associated land-based infrastructure. Early consultation with NRW MLT is advisable to determine a project’s licensing requirements.

Electricity Act 1989 (Section 36 consent) – Marine Management Organisation
A Section 36 (S36) consent essentially gives the developer permission to generate electricity. For projects between 1-100MW in Welsh and English Territorial Waters and the Renewable Energy Zone (REZ), the Marine Management Organisation (MMO) is responsible for administering offshore renewables energy generating station applications under Section 36 of the Electricity Act 1989.

Below 1MW – Offshore developments with a capacity of 1MW or under are exempt from S36 requirements.

Over 100MW, where ‘development consent’ is required for Nationally Significant Infrastructure Projects, applications are made to the Planning Inspectorate (PINS) under procedures governed by the Planning Act 2008 (and amended by the Localism Act 2011).

The S36 application should cover the generating station (turbine, wave/tidal device etc.) and any inter array cabling whilst any offshore platform or cabling to the platform or to shore should be considered through an application for a Marine Licence.

Seabed Lease – The Crown Estate Act 1961 – The Crown Estate

The Crown Estate owns the majority of the seabed from the high water mark out to the 12 nautical mile limit. It is necessary therefore, to obtain a site licence or lease before undertaking any works. In relation to energy developments, leases are generally issued in leasing rounds. The Crown may grant titles or leases of parts of the foreshore and seabed out to a distance of 12nm. In addition, the Energy Act (2004) includes provisions for the Crown to grant leases in the REZ on the UK’s continental shelf out to 200nm. Applicants therefore need to obtain a lease from the Crown Estate Commissioners (or the holder of the rights) for the use of all sea areas in inshore waters (up to 12nm) or out to 200nm in the REZ. Although The Crown Estate Commissioners own the vast majority of the seabed there may be other landowners from which permission will be required, most likely in inshore waters and estuaries. It is the sole responsibility of the applicant to ensure that all necessary leases are acquired, and any conditions satisfied, by the planned deployment date.

European Protected Species (EPS) Licence – Natural Resources Wales Marine Licensing Team

Certain species are listed in Annex IV of the Habitats Directive as species of European Community interest and in need of strict protection. The protective measures required are outlined in Articles 12 to 16 of the Directive. Marine EPS include: all cetaceans (whales, dolphins and porpoises), five species of turtle and the common sturgeon. Developments likely to compromise the legal protection afforded to these species will invariably require a licence from Natural Resources Wales (Under Regulation 53(2) to do so lawfully, subject to certain criteria being complied with.

Consideration of EPS should be included as part of the application process, not as an issue to be dealt with at a later stage. Any consent given without due consideration to these species is likely to breach the Habitats Directive with respect to EPS and the possibility of consequential delays or the project being halted by the European Commission (EC).

(N.B the email addresses on all documents are incorrect. When responding or applying please use this new contact email specieslicence@naturalresourceswales.gov.uk)

The Electricity Regulations 2007 Safety Zone (Offshore Generating Stations) (Safety Zones) (Applications Procedures and Control of Access) Consent – Department for Energy & Climate Change, DECC

 The Electricity Regulations 2007 consent requires an application for the provision of a safety zone to be placed around or adjacent to an offshore renewable energy installation. This application should be made to the relevant regulatory authority with notice of the application served on the Marine and Coast Guard Agency and NRW. In the majority of cases in the sea off Wales the relevant regulatory authority will be DECC.  However, where the Marine Management Organisation (MMO) has granted Section 36 consent (under the Electricity Act 1989); the MMO will be the relevant regulatory authority. Applications to DECC are made by way of the Energy Infrastructure Portal or by letter.  A charge of £2000 shall be payable to the Secretary of State in respect of any application.

Water Framework Directive (WFD) – Natural Resources Wales

Council Directive 2000/60/EC is transposed into UK law by: The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003. The Water Framework Directive applies to all estuarine and coastal waters in Wales, out to 1 nautical mile (and closing lines across embayments).   Under the WFD, any new project or activity which has the potential to have an impact directly or indirectly on water body ecology will need a ‘WFD Compliance Assessment’ which considers whether it could cause deterioration in the ecological status or potential of that water body or adjacent water bodies.  Ecological status has several component parts, including biological, physio-chemical and hydromorphological.  Any information required to undertake a WFD Compliance Assessment, if necessary, should be provided within the ES.

Decommissioning Scheme under Energy Act 2004 (Sections 105 and 114) – Department for Energy and Climate Change

Sections 105 to 114 of the Energy Act 2004 introduced a statutory decommissioning scheme for offshore renewable energy installations in English, Welsh and Scottish territorial waters and in the REZ. Under the statutory scheme, the Secretary of State for Energy and Climate Change may require those persons with an interest in such installations to produce a fully costed Decommissioning Programme (DP) detailing how they intend to remove the installation when it comes to the end of its useful life and how the costs of doing so will be funded. Unlike development consents/licences which have been devolved, responsibility for decommissioning remains with the UK Government and is administered by the Department for Energy and Climate Change (DECC) and must be agreed by the Secretary of State.

Liaison with DECC should be via NRW in the first instance and guidance is available on the DECC website. Applicants should bear in mind that all information presented in the DP will be made publicly available. If applicants feel that the financial section of the programme is likely to be of high commercial sensitivity, they should discuss this issue directly with DECC. DECC is keen to assist developers and offer informal, as well as formal, feedback on the proposed decommissioning programmes. Developers should ensure that they have fully read and followed the DECC guidelines for decommissioning before approaching them to discuss their proposals in greater detail.

Merchant Shipping Act 1995 – Trinity House

If marks or lights are required in respect of a wave or tidal stream energy deployment, application must be made, and granted by, the General Lighthouse Authority which in Welsh Territorial waters is Trinity House (TH). Developers need to obtain Statutory Sanction after agreement has been reached with the TH on the specific characteristics and placement of any marks.

Navigational Safety and Aids to Navigation – Marine Management Organisation

The UK Government has a responsibility to ensure navigational safety measures are implemented in order to honour its commitments under Article 60(7) of the United Nations Convention on the Law of the Sea (UNCLOS) relating to provisions for ‘Artificial islands, installations and structures in the exclusive economic zone’. This is addressed in a number of specific Acts. DECC is responsible under Section 95 of the Energy Act 2004 for considering applications for safety zones for offshore renewable energy projects in English, Welsh and Scottish waters and in the REZ, except for those with a generating capacity of 100MW or less in English and Welsh waters which are dealt with by the MMO. Section 99 of the Act deals specifically with navigation and in combination with Section 36b ‘duties in relation to navigation’ of the Electricity Act (1989), stipulates that a consent cannot be granted for an offshore renewable energy installation (OREI) which is likely to interfere with the use of ‘recognised sea lanes essential to international navigation’.

Within UK water, the Maritime and Coastguard Agency (MCA) is a statutory consultee on all developments. If marks or lights are required in respect of marine developments, a project specific assessment must be made with Statutory Sanction applied for from the General Lighthouse Authority. This provides compliance with the Government’s commitment to the International Convention for the Safety of Life at Sea (SOLAS) 1974, and as directed by the Merchant Shipping Act 1995.

Natural Environment and Rural Communities (NERC) Act (2006) Section 42 – All licensing authorities

The Natural Environment and Rural Communities (NERC) Act came into force on 1st Oct 2006. Section 42 (S42) of the Act requires the Welsh Government to publish a list of habitats and species which are of principal importance for the conservation of biodiversity in Wales. The list has been drawn up in consultation with NRW, as required by the Act.

The S42 list is used to guide decision-makers such as public bodies, including local and regional authorities, in implementing their duty under section 40 of the Natural Environment and Rural Communities Act 2006, to have regard to the conservation of biodiversity in Wales, when carrying out their normal functions. There are 55 Marine Species which are included in the Welsh Act.

Section 90 (2) of the Town and Country Planning Act 1990 – Local Planning Authority

In relation to the onshore elements of a project, a developer may pursue deemed planning permission under Section 90 (2) of the Town and Country Planning Act 1990. On granting consent under Section 36 of the Electricity Act 1989 the Secretary of State may direct that planning permission for that development and any ancillary development is granted.

Council Directive 2008/56/EC known as the Marine Strategy Framework Directive (MSFD) – Welsh Government

The MSFD (transposed into UK law by The Marine Strategy Regulations 2010) outlines a transparent, legislative framework for an ecosystem-based approach to the management of human activities which supports the sustainable use of marine goods and services. The overarching goal of the Directive is to achieve ‘Good Environmental Status’ (GES) by 2020 across Europe’s marine environment.  This is a new piece of regulation and the requirements for details in licensing applications are limited by the production of Marine Plans. There is a cross-over at one nautical mile offshore between the WFD and MSFD with both regulatory regimes having similar objectives.

Marine strategies will be implemented by each member state to protect and conserve the marine environment, prevent its deterioration, and, where practicable, restore marine ecosystems in areas where they have been adversely affected. The MSFD does not state a specific programme of measures that Member States should adopt to achieve GES, except for the establishment of Marine Protected Areas (MPAs). The MSFD does however outline 11 high level descriptors of GES in Annex I of the Directive.

  • Biological diversity is maintained. The quality and occurrence of habitats and the distribution and abundance of species are in line with prevailing physiographic, geographic and climatic conditions.
  • Non-indigenous species introduced by human activities are at levels that do not adversely alter the ecosystems.
  • Populations of commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock.
  • All elements of the marine food webs, to the extent that they are known, occur at normal abundance and diversity and levels capable of ensuring the long-term abundance of the species and the retention of their full reproductive capacity.
  • Human-induced eutrophication is minimised, especially adverse effects thereof, such as losses in biodiversity, ecosystem degradation, harmful algal blooms and oxygen deficiency in bottom waters.
  • Sea-floor integrity is at a level that ensures that the structure and functions of the ecosystems are safeguarded and benthic ecosystems, in particular, are not adversely affected.
  • Permanent alteration of hydrographical conditions does not adversely affect marine ecosystems.
  • Concentrations of contaminants are at levels not giving rise to pollution effects.
  • Contaminants in fish and other seafood for human consumption do not exceed levels established by Community legislation or other relevant standards.
  • Properties and quantities of marine litter do not cause harm to the coastal and marine environment.
  • Introduction of energy, including underwater noise, is at levels that do not adversely affect the marine environment.
  • Council Directive 2008/56/EC known as the Marine Strategy Framework Directive (MSFD)

Further Information