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2.0 THE GEOGRAPHICAL EXTENT OF PLANNING CONTROL
Proposal: To extend planning control to marine fish farming and shellfish farming in transitional and coastal waters.
Source of proposal: Statement by Lord Sewel, 10 th November 1997; The Extension of Planning Controls to Marine Fish Farming, Consultation Paper, July 2000; Analysis of Responses to Consultation, June 2001; Royal Commission on Environmental Pollution, 23 rd Report Environmental Planning, para.9.62; Water Environment and Water Services (Scotland) Act 2003, s.24.
Current position: As a result of the decision of the Inner House in Aygyll and Bute District Council v Secretary of State for Scotland 1976 SC 248; 1976 SLT 33, the jurisdiction of planning authorities is taken to be restricted to the area above the low water mark of tidal waters. Permission to locate fish farms and shell fish farms in marine waters is granted by way of a development consent and lease from the Crown Estate which owns the sea bed. The lease will generally be for 10 (shell fish) or 15 (fin fish) years. Exceptionally, in limited areas of Orkney and most of Shetland, fish farms are controlled by the local authorities, in their capacity as harbour authorities, through a works licence system introduced by private legislation. Local authorities have, however, been involved in considering applications for development consent through an interim, non-statutory scheme that has been in operation since late 1998. Planning permission is required in the normal way for any onshore infrastructure.
However, s.24 of the Water Environment and Water Services (Scotland) Act 2003 (WEWS) will amend s.26(6) of the 1997 Act so as to provide that the placing of equipment in inland, transitional or coastal waters (ie., up to the 3 mile limit) for the purposes of fish farming will involve development as an engineering operation. 'Equipment' is defined as including any tank, cage, or other structure or long-line, for use in fish farming. The definition of equipment and fish farming can be amended by order. Section 40 of the 1997 Act, as amended, will require consideration to be given before planning permission is granted to the effects on the water environment of any fish farm development within the meaning of s.26(6). Wide powers are conferred to apply by order the provisions of the 1997 Act to transitional and coastal waters; and an order may also determine which planning authority is to have jurisdiction for the purposes of the application of the 1997 Act to such waters.
The proposal in more detail: Because of the potential conflict of interest faced by the Crown Estate, which is expected on the one hand to secure a return on its estate while on the other to control the environmental impacts of any proposed development on that estate, the decision has been taken to transfer the regulatory function to planning authorities. This would also have the effect of introducing democratic accountability into decision-making.
Implementation: The extension of planning control is being achieved by way of a mixture of primary and secondary legislation. In particular, wide order-making powers are being conferred on Scottish Ministers to apply the provisions of the 1997 Act to the placing of equipment for the purposes of offshore fish farming and to identify the planning authority for these purposes. As the proposal is to replace the works licence system in Orkney and Shetland, in so far as it applies to marine fish farming, amendment of the Zetland County Council Act 1974 and the Orkney County Council Act 1974 will also be required.
Marine fish farming is to be brought within the definition of 'development' within the 1997 Act. This will be achieved by inserting transitional and coastal waters after inland waters in s.26(6) - the provision bringing the placing of equipment for onshore fish farming within planning control. Once the activity is brought within the definition of 'development', the other development control provisions in the 1997 Act come into play.
Discussion: Several points require consideration, although, at present, these are matters for WEWS rather than a Planning Bill :
- should the use of a defined area for fish farming constitute development requiring planning permission. At present the proposal is to confine control to the operation of placing or assembling 'equipment' (tanks, cages or other structures or long lines used for fish farming)? The effectiveness of this depends how far all fish farming activity may be said to fall within the definition of an operation.
- permanence and attachment are material to the question whether operations constitute development. Will it be enough for the legislation to refer to the placing of tanks and cages for offshore fish farming to come within control; or will it be necessary to demonstrate that these tanks and cages have the necessary degree of permanence and attachment?
- is the 3 mile limit sufficient or should control be extended to the 12 mile limit of territorial waters?
- is regulation to extend only to marine fish farming? This is what is proposed in the Consultation Paper and what is provided for in the Water Environment and Water Services (Scotland) Act. This is a pragmatic approach to the issue of the effective control of fish farming. There are, however, other offshore developments that could raise planning concerns (for example, the Consultation Paper was issued before the increasing focus of attention on offshore renewable energy) and a number of those interviewed suggested that there was an argument for bringing them within control. The RTPI have suggested this could be achieved by a general provision for regulating offshore development through planning control and specifying the classes of development to be subject to such regulation through secondary legislation.
- transitional arrangements will need to be made for existing fish farms. The simplest arrangement might be a combination of the two options set out in para.16 of the Consultation Paper. A planning application to continue the development would be required on the expiry of the present development consent or works licence or by a specified date (say 5 years from the commencement date), whichever happens first. Some fish farm consents may have 10-15 years still to run and it would be undesirable to wait that length of time before bringing them within control.
- there would seem to be no case for compensation following a refusal of planning permission to continue fish farming where the development consent or works licence has expired. Where, however, permission is refused 5 years into what was anticipated to be a 15 year term, there could be financial hardship and a decision needs to be made about the relief of hardship in such cases. If compensation is to be paid, the question arises 'who pays'? Not surprisingly, this was a question of concern to planning authorities
- amendment is proposed to s.40 of the 1997 Act (EIA) so as to require an assessment to be made of the effects of fish farming on the water environment before planning permission is granted. Presumably, the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999 (SI 1999 No 367) will be repealed in due course as the environmental assessment of fish farming will be governed by the Environmental Impact Assessment (Scotland) Regulations 1999 (SI 1999 No 1). Intensive fish farming is already listed in Schedule 2 to the EIA Regulations. For the avoidance of doubt, it would be desirable to make it clear that this includes offshore fish farming.
- a decision will need to be made whether a planning permission for fish farming, once implemented, should run indefinitely or should be reviewable.
- it will be necessary to consider how other provisions in the planning legislation should apply offshore including eg: development plans, neighbour notification and other development control procedures.
- would it be make more sense to repeal and replace the WEWS provision with a provision in a Planning Bill?
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