Fish farms: a controlled environment
A guide to the complex planning and regulatory requirements surrounding marine fish farming in Scotland
Marine fish farming is a highly regulated sector in Scotland. The requirements for planning permissions and licences have changed in recent years, and more changes are afoot with, among other things, the passing of the Aquaculture and Fisheries (Scotland) Act 2013, marine plans and new local development plans (for example in Orkney and Shetland). It is understandable, then, that the bewildering array of consents and licences required for the operation of a fish farm in Scotland might have someone flapping at the gills.
This article looks at some of the planning and other regulatory boxes that must be ticked in order to get a marine fish farm up and running in Scotland.
Pre-1 April 2007: Marine fish farming did not constitute “development”. All marine fish and shellfish farms required consent from the Crown Estate through a non-statutory scheme of development consent. In Shetland and Orkney, marine fish farms were consented via a system of works licences issued by the local planning authority.
Such consents may still exist for fish farms placed in the water before 1 April 2010. They may still be relevant to continuing operations of these fish farms, particularly any conditions attached to them. However, many of the consents were time limited and may have expired, or have been superseded by planning permission from Marine Scotland for continuing operation.
Post-1 April 2007: On 1 April 2007, the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 came into force. It gave local planning authorities full responsibility for all aquaculture developments in marine waters in Scotland. Since then, applications have been made to the local planning authority under s 26 of the Town and Country Planning (Scotland) Act 1997.
As the incorporation of marine fish farms into the planning system is a relatively recent event, there is still a transitional regime in place. Marine fish farms which were built out under the “old” consenting regime require planning permission for their continuing operation (1997 Act, s 31A): this relates to all marine fish farms which don’t already have planning permission that were established before 1 April 2007, and any farms placed/assembled up to 1 April 2010 on the basis of consents issued pre-1 April 2007). Fish farms falling into this category must obtain planning permission for their continuing operation from Marine Scotland by 31 March 2015. The deadline for submitting applications was 31 March 2014. The deadline has had to be extended several times, partly due to the backlog of applications being handled by Marine Scotland.
Marine Scotland is dealing with applications in two (non-statutory) streams – “audit” and “review”.
“Audit” is a lighter touch assessment of fish farms which have previously undergone environmental impact assessment or have been screened as not requiring such assessment (the requirement for environmental impact assessment for fish farms having been introduced in 1999).
“Review” is for other (pre-1999) fish farms in respect of which no environmental impact assessment has been carried out.
In determining applications for audit or review, Marine Scotland will have particular regard to the likely impact of the operation of the fish farm on the environment and the extent to which this has been robustly assessed. Before granting permission for continuing operation, Marine Scotland must consult with relevant local planning authorities, Scottish Natural Heritage and the Scottish Environment Protection Agency (SEPA). Permission may be granted unconditionally or subject to conditions.
The Scottish Government issued general planning permission for continuing operation of fish farms in certain specified areas of sea via the Town and Country Planning (Marine Fish Farms Permitted Development) (Scotland) Order 2011 (a permitted development order). While this was helpful in theory, in practice the lack of detail has caused operators various difficulties, such as attempting to satisfy third parties that they do in fact have consent for their operations.
Permission is required for the placing in the sea of any equipment for the purpose of fish farming, or for a material change of use of that equipment (1997 Act, s 26). Planning permission is also required for the construction of any land-based fish farm facility, including any shore base or jetty.
There are limited statutory exceptions to the requirement for planning permission, such as reconfiguration of existing facilities or certain changes of species reared (via permitted development rights). In practice, operators have found that the permitted development rights are of limited value, because the type of equipment alteration or upgrade which might commonly be contemplated falls outwith their scope.
Planning permission for new development or change of use is obtained from the local planning authority. As with any application within the planning system, applications should be granted if they are in accordance with the development plan, unless material considerations indicate otherwise. Local planning authorities are also required to act in accordance with national and local marine plans (although none have been adopted yet), unless relevant considerations indicate otherwise. While national policy is generally supportive of aquaculture, local sensitivities can emerge and give rise to controversy during the application process.
An environmental impact assessment (EIA) will usually be required to support the planning application for a new finfish farm site. Where there is a question of a potential effect on a European protected site, a Habitats Regulations assessment is also likely to be required (there are some such sites in Orkney and Shetland, for instance, which protect certain seal and seabird populations).
What else do you need?
Other regulatory requirements to operate a marine fish farm in Scotland include:
Aquaculture production business authorisation
Under the Aquatic Animal Health (Scotland) Regulations 2009, an aquaculture production business ("APB") authorisation must be obtained from Marine Scotland (the Fish Health Inspectorate) prior to commencement of fish farming operations. Marine Scotland may impose such conditions as it sees fit, and certain mandatory conditions will apply. The 2009 Regulations implement Council Directive 2006/88/EC on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals, and require all businesses keeping these animals to be authorised.
A marine licence is generally required under the Marine (Scotland) Act 2010 to deposit any object or material in the sea or on the seabed, and where material is discharged from a wellboat. A partial exemption from licensing for marine fish farms applies: they must be licensed only if they present an obstruction or danger to navigation. However, in practice, this means that all finfish farms need a marine licence for their initial development.
There is potential for overlap between the planning and marine licensing regimes, although Marine Scotland generally seeks not to duplicate controls imposed by the local planning authority. (The relationship of planning and licensing is considered in draft 2013 Circular, “The relationship between the statutory land use planning system and marine planning and licensing”: www.scotland.gov.uk/Publications/2013/07/6666/downloads.) This has caused some problems for operators where, for example, local planning authorities attempt to regulate matters which are more appropriately dealt with by a different organisation.
FEPA and CPA licences
The marine licensing system came into effect on 6 April 2011 – any fish farm placed in the sea before that date should have a FEPA licence (pursuant to the Food and Environment Protection Act 1985) and a CPA licence (pursuant to the Coast Protection Act 1949).
Fish farm operations must obtain a licence from SEPA under the Water Environment (Controlled Activities) (Scotland) Regulations 2011. SEPA will set limits on the scale, rate and frequency of discharges from fish farm sites into the environment, and has control over the appropriate size (tonnage) of the fish farm.
A seal licence may be granted by Marine Scotland under the Marine (Scotland) Act 2010 to protect the health and welfare of farmed fish and to prevent serious damage to fisheries or fish farms. So a seal licence might be required as part of a predator control programme. Licences are granted for a limited time for a specified number of animals.
Food safety regulation and hygiene
Fish farmers in Scotland are subject to Scottish and EU food safety and hygiene regulations. The Food Safety Act 1990 requires that fish farmers must not supply food that is considered unsafe. European Regulations 852/2005/EC, 853/2004/EC and 854/2004/EC also lay down hygiene rules for food processing businesses. (For the purposes of European law, a “food business” is any business dealing with food, and includes all food production, including primary production (catching, aquaculture and transport). All stages of the food chain are responsible for maintaining food safety within their operations.) They are enforced in Scotland by the Food Hygiene (Scotland) Regulations 2006, which create a series of offences for failing to comply with EU hygiene rules.
Fish health regulation
Fish farm management in Scotland is regulated by the Aquaculture and Fisheries (Scotland) Act 2007, as amended by the 2013 Act. The legislation covers the control of parasites and disease in fish, fish escapes and the recovery of escaped fish.
In a nutshell
The regulation of aquaculture in Scotland is complex, and it certainly seems to go against the “less is more” mantra. Whilst various environmental protections are inevitable (and indeed essential), the Scottish Government may need to consider whether over-regulation might put its economic objectives for the industry at risk.
Kendra Lennox is a senior solicitor in the planning team of Brodies LLP
t: 0141 245 6733