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EXTENDING PLANNING CONTROLS TO MARINE FISH FARMING
Consultation Paper

EXTENDING PLANNING CONTROLS TO MARINE FISH FARMING - THE IMPLEMENTATION OF SECTION 24 OF THE WATER ENVIRONMENT AND WATER SERVICES (SCOTLAND) ACT 2003

INTRODUCTION

1. This consultation paper seeks views on the Executive’s proposals for the introduction of statutory planning controls to marine fish farming in coastal and transitional waters as defined in the Water Environment and Water Services (Scotland) Act 2003. It also contains a draft Regulatory Impact Assessment (RIA) and draft Scottish Planning Policy: Planning and Fish Farming.

BACKGROUND

2. The Scottish Executive is to introduce statutory planning controls for marine fish farming. The planning controls will cover the marine waters, defined in the Water Environment and Water Services (Scotland) Act 2003 ("the WEWS Act") as coastal and transitional waters (i.e. out to the 3-nautical mile limit). Both finfish and shellfish farming will be subject to the new planning controls.

3. This consultation paper sets out the Executive’s proposals for the introduction of robust and workable planning controls implementing section 24 of the WEWS Act. We are grateful to those stakeholders who, through an expanded Highlands and Islands Aquaculture Forum, have engaged with us to date on the key issues, acting as a sounding board for the emerging consultation paper.

Commitment to introduce statutory planning controls

4. The intention to introduce planning controls over marine fish farming was announced by the then Scottish Office Minister Lord Sewel in November 1997 as part of HM Government's response to the Report of the Scottish Salmon Strategy Task Force². Ministers’ policy statement was also a response to a perceived conflict of interest for the then Crown Estate Commissioners (now styled "the Crown Estate"), given their dual role as both landlord for, and effectively regulator of, marine fish farming developments.

5. Concerns had been expressed about whether in considering applications for fish farm developments, sufficient attention had been paid to potentially conflicting uses and environmental impacts (although there was not necessarily evidence that this was the case). The Government’s announcement also reflected a desire for more transparency and democratic accountability by introducing decision making closer to those affected by marine fish farm developments.

6. Implementation of the policy would require new and amended primary legislation. Given the imminence of devolution, it was acknowledged that this would need to await the creation of the Scottish Parliament.

Current controls on the siting of marine fish farms

7. Currently the only statutory controls for the siting of marine fish farms are to be found in the Zetland County Council and Orkney County Council Acts of 1974. Through "works licence" procedures, under Section 11 of the respective Acts, Shetland Islands and Orkney Islands Councils have the power to grant licences to operators seeking to construct, place, maintain, alter, renew or extend any works under, over or in designated marine areas. These provisions were introduced originally to control oil-related works, but recently they have also been used in relation to fish farming.

8. Outwith those marine areas covered by works licence provisions, there is currently in place a non-statutory "interim scheme" of regulation for authorising marine fish farms. This is expressed in the Procedure Guidance Note: Interim Scheme for the Authorisation of Marine Fish Farms in Scottish Waters, published by the Scottish Executive in May 2000.

9. Under the scheme, the Crown Estate invites relevant local authorities to comment on proposed marine fish farm developments. The Crown Estate uses the local authority's response to inform its judgement on whether to grant a development consent. Applicants who are refused consent can appeal against the decision. The appeal scheme is administered by the Scottish Executive Inquiry Reporters Unit (SEIRU). In Orkney and Shetland, third parties can also appeal to the Scottish Ministers against the granting of a works licence.

10. To assist the consideration of marine fish farm proposals the Executive published policy guidance and advice on marine fish farming. The paper Locational Guidelines for the Authorisation of Marine Fish Farms in Scottish Waters, and the Advice Note Marine Fish Farming and the Environment were most recently revised in January 2003. This guidance is applicable to both the interim scheme and works licence procedures.

The 2000 consultation paper and responses

11. In July 2000 the Scottish Executive published the consultation paper The Extension of Planning Controls to Marine Fish Farming. That paper set out the Executive’s proposals to extend statutory planning controls to fish and shellfish farming developments. The proposals can be summarised as follows:

• Such developments below the low water mark would require planning permission.

• Existing developments would become subject to the new controls. This would happen either upon expiry of their present lease, or at another appropriate date following which point the suitability of the siting of the development would be considered afresh.

• Planning authorities would be empowered to consider the environmental impact of those developments in determining planning applications.

• The existing works licence regime in Orkney and Shetland, as it relates to fish and shellfish developments, would be replaced.

• Those seeking to develop fish or shellfish farms would continue to obtain a lease from the Crown Estate as well as a planning permission from the planning authority. (The proposals outlined in this consultation paper did not seek to alter the existing management functions of the Crown Estate).

12. The Extension of Planning Controls to Marine Fish Farming: Analysis of Responses was published in July 2001. The main themes which emerged from the responses to the consultation paper were:

• The fish farming industry generally had reservations about the proposals. The consensus was that some form of planning control was needed, but that further discussion and consultation were required. In particular, the intention to bring existing farms under planning control and to offer no compensation for revoked permissions generated a great deal of comment.

• Other groups were largely supportive. The proposals were felt to be long overdue, potentially resulting in a more inclusive and democratically accountable system, together with a major improvement in the quality of information on which decisions are based.

• It was widely acknowledged that fish farming plays a significant economic role in large areas of the Highlands and Islands and that economic and environmental factors would have to be carefully balanced. It was emphasised that the proposals should be well thought through, clearly defined and as prescriptive as possible to avoid confusion.

• Overall it was considered that the proposals could be workable for both local authorities and the industry, although there was some debate about the resource implications.

13. In its response, the Executive noted that the primary legislation needed to introduce any changes would be introduced as soon as an appropriate opportunity arose in the legislative programme.

Planning provisions in the Water Environment and Water Services (Scotland) Act 2003

14. In its report at Stage 1 of the Water Environment and Water Services Bill, the Scottish Parliament’s then Transport and Environment Committee expressed support for the introduction of planning controls over marine fish farming. Subsequently, at Stage 2, an amendment to the WEWS Bill was laid, designed to introduce such controls. Although Ministers were not able to accept the amendment as it stood, they made a commitment to investigate whether a more acceptable Executive amendment could be brought forward at Stage 3. This was achieved and following deliberation in the Parliament on 29 January 2003, the Executive’s amendment was approved.

15. Section 24 of the Water Environment and Water Services (Scotland) Act 2003 provides the necessary legislative framework for the extension of planning controls to marine fish farming. It should be noted that planning authorities will not assume control over other forms of development in the marine environment, and that planning permission will operate - as is the case on land - alongside other controls. The intention is therefore not to duplicate nor displace other forms of environmental or other regulation. The Explanatory Notes which accompany the Act summarise and act as a guide to the effect of this section of the Act, and are useful as a source of reference.

16. Hyperlinks to the text of the documents mentioned above can be found in Annex A.

ISSUES FOR CONSIDERATION

17. We have identified a number of broad planning policy and operational issues which we consider need further consideration; these are set out below. Respondees are invited to comment on the particular questions contained in the main paper (these are also listed at Annex B for convenience).

18. In extending planning controls to cover marine fish farming, we consider that the basic policy objective should be continuity and consistency with the current land-based planning system as far as is possible and sensible. Planning controls over marine fish farms will therefore apply all relevant provisions of the Town and Country Planning (Scotland) Act 1997 unless there are specific and demonstrable reasons for differences of approach due to the nature of the marine environment or the operation of a marine fish farm as opposed to a freshwater fish farm.

19. It should be noted that the provisions in the WEWS Act extend only to marine fish farming out to 3-nautical miles; other developments in the marine environment, e.g. wind farms, are not covered by these provisions. We are therefore not inviting comments on the following issues:

• The extension of planning controls to other types of marine development;

• Broader issues of marine spatial planning, Integrated Coastal Zone Management;

• Changes in the scope of Environmental Impact Assessment (other than the consolidation of the regulations that we will be undertaking);

• Provisions which would require primary legislation through a Planning Bill, such as the extension of planning controls to the 12-nautical mile limit; and

• The role of the Crown Estate as landlord of the sea-bed.

The geographical scope of the provisions - the definition of sea-ward boundaries

20. Section 24(6) of the WEWS Act makes provision for Ministers to allocate, by order, responsibility for planning controls for marine fish farms in transitional and coastal waters (i.e. to the 3-nautical mile limit) to particular planning authorities. This provision does not extend the general jurisdictional boundaries of planning authorities. Rather, it gives them a specific jurisdiction in relation to fish farm developments in marine waters within the amended meaning of fish farming in section 26 of the Town and Country Planning (Scotland) Act 1997 (special provision which applies only to marine fish farming). Section 24(7) of the WEWS Act requires that in making such an order, the Scottish Ministers must consult every planning authority, SEPA and such other persons as they see fit.

21. It will be necessary to define the spatial limits of individual planning authorities’ responsibilities within coastal and transitional waters and with regard to the Scottish Adjacent Waters Boundaries Order 1999 (SI 1999/1126). This will require the definition of inter-authority boundaries. The definition of boundaries between local authorities in the sea is a complex matter and we are not aware of any such established formal or legal boundaries between authorities. There are, however, boundary lines for areas of regulation in the sea — for example, defining the limits of Harbour Authority jurisdictions. We will take into account any established boundary-setting techniques as we consider the best way to define local authority seaward boundaries in the context of marine fish farming. We will also consider the need for periodic review as part of any changes in local authority boundaries.

Question 1: What issues should the Executive consider when preparing the planning authority boundary Designation Order?

Transitional arrangements for existing fish farms

22. The responses to the 2000 consultation paper indicated broad support for the proposal to bring marine fish farming under planning control. The paper contained two options for transitional arrangements:

• setting a date by which all existing developments must apply for and achieve planning permission under the new arrangements; or

• phasing-in, possibly linking the requirement to obtain planning permission with the date of expiry of the existing lease from the Crown Estate.

23. There was some debate about how compliance could be achieved with least difficulty, but it was thought important that all farms should have to comply within a specified period, with no size exceptions. The most popular solution was a requirement to apply on expiry of the current lease. This would have the advantage of allowing for a phased introduction of controls, staggering the submission of planning applications to local authorities.

24. We now consider that this approach would be likely to result in a significant degree of uncertainty and apprehension on the part of existing fish farm operators and a further unsettling effect on investor confidence. Therefore, and given the importance that the Scottish Executive attaches to the sustainability and economic viability of the aquaculture industry, we have revisited our approach. We now propose that there will be the presumption that on introduction of the new planning controls any existing fish farm operators who possess a valid development consent (from the Crown Estate) or works licence (from Orkney or Shetland Island Councils) on the date that planning controls are introduced will be granted planning permission, subject to the Executive’s obligations with regard to European Directives. In transposing extant development consents/works licences into planning permissions, we must ensure that in appropriate cases the development consents/works licences have been subject to review by the competent authority. For example, Regulation 50 of the 1994 Habitats Regulations requires competent authorities to review all existing development consents or permissions as soon as is reasonably practicable. Such reviews are already underway, e.g. the Crown Estate is currently reviewing existing development consents which have implications for Natura 2000 sites. The proposals in this paper do not affect this position, other than to transfer from one competent authority to another the obligation to review. Paragraph 49 of the attached draft Scottish Planning Policy document provides further details on Natural Heritage issues.

25. There may also be other relevant issues which need to be taken into consideration. We will ensure that the process by which existing marine fish farms are brought into the planning system incorporates any necessary assessments.

26. All new marine fish farms, or applications to modify an existing marine fish farm, will require an application for planning permission.

27. For existing operators, any conditions attached to their Crown Estate development consent or Orkney/Shetland works licence should be converted into planning conditions, where appropriate. Responsibility for monitoring and enforcing planning conditions will lie with the relevant planning authority. The process will be similar manner to that which applies to conditions attached to land based developments and freshwater fish farms.

28. We are still considering the legislative and procedural means of giving effect to the transitional provisions outlined above. Comments from respondees would be appreciated.

Question 2: What issues need to be addressed in implementing our proposed transitional arrangements for fish farms with existing development consents/works licences?

Elements of the planning system which need to be adapted for use in the marine environment

29. Freshwater fish farming, and any onshore development necessary to service marine fish farms, is already subject to the provisions of the Town and Country Planning (Scotland) Act 1997. As noted in paragraph 18 above, in extending planning controls to cover marine fish farming, our basic policy objective is continuity and consistency with the current land-based planning system as far as is possible and sensible. We recognise that there are specific elements of the planning system that, while workable and sensible on land, do not necessarily fit the circumstances of the marine environment e.g. neighbour notification, enforcement, site notices, statutory consultees etc. These issues are identified later in this section.

30. Annex C contains a summary table identifying where we consider there will be particular deviation from the current land based planning system and associated guidance.

Question 3: Are there aspects of the current land based planning system not listed below which may require amendment?

Duration of permission

31. Currently, development consents and works licences are time limited. From discussions with authorities where freshwater fish farms are situated, we understand that past practice for freshwater farms has generally been to grant planning consent without limit of time and without any formal review provisions. Section 41(1) of the 1997 Act allows planning authorities to impose conditions to limit the time period for a planning permission, and a relevant model condition can be found in the addendum to Circular 4/1998: Model Planning Conditions. We do not intend to change this provision and will be looking for the normal practice of permanent consents under the planning system to continue. This will allow for a level of certainty for the industry thus aiding long-term investment decisions. However, we recognise that there may be circumstances when the planning authority may wish to consider whether the introduction of a time limited consent condition is justified. It should be noted that even where planning permission is granted for a marine fish farm without a time limit condition attached, then any time limitation on any associated lease from the Crown Estate will remain.

32. We will consider issuing guidance on the use of time limited consents for marine fish farms through a Circular accompanying the new legislative provisions.

Question 4: Under what circumstances should planning permission for marine fish farms be time limited or granted without a time limit?

Extent of planning permission

33. Currently, under Article 3(c)(i) of Part 2 of the Town and Country Planning (General Development Procedure) Order 1992 ("the GDPO"), an application for planning permission shall be accompanied by a plan sufficient to identify the land to which it relates. We wish this provision to remain. However, current land-based practice, as noted in PAN 48: Planning Application Forms, is for the land to which the application relates to be outlined in red, and any adjoining land owned by the same person to be outlined in blue. This system may not be appropriate for offshore developments.

34. Current practice with regard to Crown Estate development consents is to require a 1:10,000 chart or map using the latest edition published, clearly showing the application area(s). With applications for a works licence, Shetland Islands Council requires the submission of an Admiralty chart location map plotting the reference for the site.

35. We consider that to aid the assessment of the whole footprint of a development, we will be looking to require the production of an Admiralty chart or map(s) clearly identifying the site of the offshore development with the development’s midpoint identified with the appropriate grid reference. The site should be identified in red with the lease boundary, where different, identified in blue.

36. Where an offshore site traverses the boundary of two planning authorities as defined in the Designation Order then, as with the current planning system, the applicant will be required to apply for planning permission from both authorities.

37. We recognise that there may be additional spatial information required by the planning authorities to determine the application such as distribution of cages and buoys. We welcome consultees’ views on this matter.

Question 5: What additional information should applicants be required to forward to planning authorities as part of the application?

Permitted Development Rights

38. Subject to certain limitations, planning permission is granted for development falling into the classes specified in Schedule 1 of the Town and Country Planning (General Permitted Development) Order 1992 ("the GPDO"), as amended. These permissions are referred to as permitted development rights.

39. We would welcome views on whether there are particular activities or functions in relation to marine fish farming development which should attract permitted development rights. We will consider whether the current GPDO is suitably worded or whether amendments to the Order are necessary.

Question 6: What, if any, permitted development rights should marine fish farming attract?

Planning permission for onshore facilities

40. Currently, onshore facilities require planning permission from the relevant local authority. Our intention is that where a developer wishes to apply for planning permission for both a marine fish farm and for associated erection of or adaptation to onshore facilities, this will be dealt with through a single planning application.

41. Where any part of the fish farm and/or any associated onshore facilities fall within more than one planning authority area then the applicant will be required to apply separately to each authority. This mirrors the arrangements that currently apply on land.

Question 7: Do you agree that associated onshore facilities, where appropriate, should form part of a single planning application?

Planning Application Fee

42. Local authorities receive funding from the Scottish Executive each year to assist with their expenditure but it is for authorities to determine how they will allocate their grant funding within the authority. Planning authorities also generate income through planning fees, the levels of which are set by the Executive and reviewed annually. Information on current fee levels can be found in SEDD Circular 1/2004: The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004. The Executive’s policy is that fees should recover the full costs incurred by planning authorities in handling applications from initial registration to decision stage. Some respondents to the 2000 consultation paper thought fees should be similar to those for land based developments while others considered that fees should reflect size, value, complexity and/or production of individual farms.

43. We intend to examine the appropriate fee level for applications for marine fish farming. We would expect that the level of fee for a marine fish farm would be in line with that for an equivalent land based development or a freshwater fish farm. For example, we are aware that in one local authority, developments of freshwater fish farms are considered to fall within Category I.5 with associated fish farm buildings being considered under Category I.2. Particular rules apply where a development crosses planning authority boundaries which are outlined in the Circular.

44. In addition, we have prepared a draft Regulatory Impact Assessment (RIA) in respect of the proposals within this paper (see Annex D). Comments on the financial implications of these provisions would be appreciated.

Question 8: Are there any particular aspects of developments on the marine environment that may affect the level of planning application fee?

Neighbour Notification

45. There will be a requirement to notify neighbours and to otherwise publicise applications (Sections 34 and 35 of the Town and Country Planning (Scotland) Act 1997), excluding notification to agricultural interests. Currently, before submitting a planning application, the applicant is required to serve on the owners, lessees and occupiers of neighbouring land a notice accompanied by a plan showing the location of the proposed development. Thereafter, they must provide a certificate to the planning authority confirming that neighbour notification has been carried out. The current system has been designed for land based planning applications, and may not work sensibly in the marine environment. For example, on land, applicants are required to notify neighbours within 4 metres of the development boundary. It is unlikely that such notification would ever be meaningful in practice and we are therefore considering how best to provide for notification in the marine environment.

46. We have considered the current provisions in the GDPO. Our view is that the most appropriate arrangement for neighbour notification would be analogous to that contained in Article 12(5)(b) of the GDPO i.e. that a local authority publicise the application through a notice in a local newspaper. We understand that this provision is considered to work well under Shetland Council’s works licence procedures. However, we are aware that under the interim scheme of regulation there is an additional requirement for the publication of a notice in the local post office. In addition, as well as the post office, for Several Order proposals, the Scottish Fisheries Protection Agency offices are avenues for publicity. Consultees may therefore wish to consider whether it would be appropriate to encompass these requirements.

47. We would welcome consultees’ views as to whether other interests such as, for example, the Crown Estate, fishery, harbour or navigational interests should require to be notified by the developer.

Question 9: Is the publication of a notice in a local newspaper an appropriate notification procedure for a marine fish farm? Should other "neighbours" be notified?

Question 10: Are there other interests in the marine environment that should be notified of the development?

Statutory Consultees

48. Article 15 of the GDPO sets out that the Scottish Ministers are a statutory consultee before planning permission is granted for development which may affect the site of a scheduled monument or its setting. We consider that where such monuments have been scheduled in the marine environment, the above Article should apply. This requirement is therefore to remain. However, the marine environment contains other sensitive sites which have been designated under the Protection of Wrecks Act 1973 and Protection of Military Remains Act 1986.

49. Administered by Historic Scotland, the 1973 Act allows wreck sites of particular historic, artistic or archaeological importance to be protected. The 1986 Act, which is administered by the Ministry of Defence, provides for the protection of military remains of any nationality in UK waters and includes vessels and aircraft lost at sea. We consider that these sensitive sites should be protected against inappropriate development. We will therefore look to amend the GDPO to require planning authorities to consult the Scottish Ministers or Ministry of Defence, as appropriate, where a development may affect a site designated under either of the above Acts.

50. We also consider that there should be an associated Notification Direction prepared under the appropriate Articles in the GDPO. The Direction will set out that, in the circumstances where the local authority decides to grant planning permission or issue conditions contrary to the advice of the statutory consultee, Ministers should be notified. The Scottish Ministers will have the power to call in such applications if they see fit.

Question 11: Do you agree with the proposed changes to the range of statutory consultees to take onboard additional marine heritage designations?

Question 12: Should there be an associated Notification Direction?

The role of the Development Plan and policy framework

51. Sections 25 and 37(2) of the Town and Country Planning (Scotland) Act 1997 require that planning decisions be made in accordance with the development plan unless material considerations indicate otherwise. It is for the decision-maker to assess both the weight to be attached to each material consideration and whether individually or together they are sufficient to outweigh the provisions of the development plan.

52. Statutory planning control does not currently extend into the marine environment. Statutory development plans therefore don't cover the marine environment but will have had an impact on the associated land based facilities. Our 2000 consultation paper envisaged that decisions on applications for planning permission for marine fish and shellfish farms should have a basis in policy through the development plan framework, prepared and adopted by the local authority. This remains our position.

53. As suggested in NPPG 13: Coastal Planning, it has been the practice of some local authorities to prepare non-statutory framework plans for marine fish farms to guide their consideration of proposals. Where these have been prepared, they may provide a basis for the statutory development plan policies relating to marine fish farming. They may also provide interim policy guidance until appropriate policies have been adopted in the relevant local development plan.

Planning Policy and Guidance

54. Planning authorities will require appropriate national guidance and advice on implementing the extension of planning controls into the marine environment. A Strategic Framework for Scottish Aquaculture commits the Executive to prepare a Scottish Planning Policy document (an "SPP") to accompany the statutory provisions extending planning controls to marine fish farming. It will cover both freshwater and marine fish farming and will provide Executive policy on land use and other planning matters. We aim to have the SPP in place when the planning controls take effect.

55. We are also considering preparing a Planning Advice Note with advice on good practice and other relevant information. In addition, there may be a need for a Planning Circular to be issued, providing guidance on the implementation of the controls.

56. A Strategic Framework for Scottish Aquaculture notes that local authorities cannot prepare their planning guidance for aquaculture without the benefit of central guidance. The revised Locational Guidelines published in January 2003 provides a basis for local authorities' work in the short term and will facilitate appropriate development. Local authorities for those planning areas in which aquaculture is, or may become, important should develop their expertise.

57. Local authorities have been encouraged to use the Executive’s Locational Guidelines and Advice Note as the basis for their marine fish farming local planning guidance. We consider that these documents should be superseded by national planning policy guidance, and that this would also incorporate policy on freshwater fish farming. We therefore enclose at Annex E a copy of a draft Scottish Planning Policy (SPP) document covering both marine and freshwater fish farms. Your comments on the draft SPP would be welcomed.

Material Considerations

58. The range of considerations which might be considered material in planning terms is, in practice, very wide and falls to be determined by the decision maker in the context of each case. Examples of possible material considerations can be found in Scottish Planning Policy 1: The Planning System. These may include: Scottish Executive policy, and where relevant, UK Government and European policy; statutory Plans; the environmental impact and design of proposed development and its relationship to its surroundings; the views of statutory and other consultees; and legitimate public concern or support expressed on relevant planning matters. We do not propose to add to or change the current position in SPP 1.

Question 13: Are you content with our proposed approach to retaining a policy background to planning decisions on marine fish farms?

Enforcement

59. Planning authorities have the primary responsibility for taking whatever enforcement action may be necessary, in the public interest, in their administrative area. Carrying out of fish farming without the required planning consent, or failure to comply with a condition or limitation associated with a planning permission, will constitute a breach of planning control. The full range of enforcement powers available in the current land based planning system will apply.

60. However, there are some practical issues relating to enforcement which we consider requires further consideration, as follows. Your comments on these and any other potential enforcement issues would be appreciated.

Scope of the Enforcement Notice

61. Regulation 3(b) of the Town and Country Planning (Enforcement of Control) (No. 2) Regulations 1992 requires that the enforcement notices served shall specify the precise boundaries of the land to which the notice relates whether by plan or otherwise. We recognise that it may be difficult to define boundaries with such precision in the marine environment. We will therefore consider whether amendment to Regulation 3(b) is required to allow for adequate identification of sites in the marine environment.

Amenity Notices

62. Section 179 of the Town and Country Planning (Scotland) Act 1997, and associated provisions, allows for the serving of amenity notices We intend to apply the principles of this provision and would envisage that this would be largely in respect of visual amenity issues, but may be equally applicable to matters which concern debris on the sea-bed or navigational issues. We will consider further whether the definition of "in their district" in section 179(1) would encompass marine fish farms as we are not extending the general boundaries of the planning authority.

Question 14: How should the arrangements in section 179 be adapted to reflect the nature of marine fish farm operations and/or their location in the marine environment?

Question 15: Are there any additional aspects of the land-based enforcement regime which may require amendment?

Environmental Impact Assessment (EIA)

63. Respondents to the 2000 Consultation paper noted strong support for EIA to be an integral part of the new arrangements. It was considered important to include clear guidelines for implementation, and for the EIA process to be transparent, consistent and expertly applied. Few respondents felt that the current EIA arrangements needed significant changes although comment was made that shellfish developments should be included. We do not consider that the inclusion of shellfish development in the scope of EIA is a matter for this consultation paper. However, we will consider further whether the EIA regulations appropriately reflect the recent designation of the National Parks in Scotland.

64. Freshwater fish farming that falls within the scope of the Town and Country Planning (Scotland) Act 1997 is subject to the requirements of the Environmental Impact Assessment (Scotland) Regulations 1999. These specifically confirm that all "intensive fish farming" proposals fall within the definition of "Schedule 2 applications".

65. EIA is an integral part of the process for considering applications for marine fish farm leases. The EC Directive 85/337/EC as amended by Directive 97/11/EC seeks to ensure that where a development is likely to have significant effects on the environment, the potential effects are systematically addressed in a formal environmental statement.

66. The Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999 apply to proposed developments in:

• sensitive areas;

• those designed to hold a biomass of 100 tonnes or more; or

• that cover an area in excess of 0.1 hectares of the surface area of marine waters, including structures or excavations.

67. These regulations are relevant to all marine finfish farming but not marine shellfish farming. The regulations enable "relevant authorities" to ask for an assessment to be undertaken if they judge that a proposal is likely to have significant environmental effects. For the purposes of the Regulations, the "relevant authorities" are the Crown Estate and Orkney Islands and Shetland Island Councils.

68. We will be looking to require EIA as appropriate for planning applications for marine finfish farms. We consider that this is best achieved by bringing marine fish farming under the scope of the Environmental Impact Assessment (Scotland) Regulations 1999. This will allow EIA relating to planning to remain in a unified set of Regulations. We will achieve this by amending the Table in Schedule 2 of the Regulations, to attract marine fish farming. However, it should be noted that we do not intend to amend the thresholds or criteria under which developments are assessed.

69. We envisage that the areas outwith the scope of the new planning controls (coastal and transitional waters) would remain under the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999. However, to differentiate between these developments and those requiring planning permission, we will amend the Fish Farming in Marine Waters Regulations noting that they do not apply where a planning application is required under the Planning Act.

70. We are mindful that A Strategic Framework for Scottish Aquaculture contains a commitment to invite COSLA to commission an independent review of EIA and subsequently produce guidance to developers and regulators. We will ensure appropriate connections are made between these workstreams.

Question 16: Are you content with the way we intend to bring marine fish farming EIA into the planning system?

Resourcing

71. Planning Application fees are referred to above. However, there are other resourcing issues relating to the training of planning staff and councillors.

72. Within planning authorities, there are a wide range of skills and experiences in dealing with marine fish farm developments through the Interim scheme. Many of the issues raised as part of a local authority's assessment of developments under the Interim scheme will be the same when assessing planning applications for developments on land including freshwater fish farm developments. However, we recognise that the issues of development planning may be novel to some. Building on the expertise of some authorities in the Interim scheme and in preparing marine fish farming framework plans, we consider that it may be useful if the Executive invited those planning authorities with expertise in dealing with applications under the Interim scheme or have developed policies on marine fish farms to work with us to develop best practice advice on policies and conditions.

73. Training for Councillors in planning issues is something that the Executive has encouraged through the Guide for Training for Councillors in Planning. Although marine fish farming is not covered in the current edition, this does not exclude local authorities from engaging with councillors on this issue in due course. In addition, councillors may already have experience of dealing with freshwater fish farming and authority's responses under the Interim scheme.

74. With regard to training for both Planning Officers and Councillors, we will investigate the potential for disseminating good practice.

Conclusion

75. We have sought to identify the key legislative and policy themes which will require change to allow the land based planning system to be transposed into the marine environment. We are of course interested in the views of consultees on any other areas that are considered to require further thought or amendment.

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