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EXTENDING PLANNING CONTROLS TO MARINE FISH FARMING
Consultation Paper

Annex D

DRAFT REGULATORY IMPACT ASSESSMENT

Title of Proposal

Consultation on the extension of statutory planning controls to cover marine fish farming.

Introduction and Summary

1. This is a draft Regulatory Impact Assessment (RIA) of the proposals for the extension of planning controls to marine fish farming. This draft assesses the impact of the proposals in the consultation paper on business and other interests. It considers the additional costs to business that may be imposed by the legislative changes and seeks to assess the wider benefits which may be brought by the changes.

2. The proposals for secondary legislation, draft guidance, and this assessment, may be revised following consultation. This consultation and any action which results from it applies to Scotland only.

3. Proposals for secondary legislation will be subject to the scrutiny of the Scottish Parliament and may therefore be subject to amendment. While the SPP sets out the overall policy, it will be given detailed effect at the local authority level through their development plans and decisions on individual applications. It is therefore not possible to be precise about the costs that will be imposed.

4. This assessment discusses the likely areas in which costs will be imposed, the significance of these costs, and who is likely to have to pay. As part of the consultation on these proposals, comments on the draft RIA should be sent by 14 January 2005 to:-

Katrina Burns
Scottish Executive Development Department
Planning Division
Area 2H-Bridge
Victoria Quay
Edinburgh
EH6 6QQ

Tel: 0131 244 7064
E-mail: planning.fishfarms@scotland.gsi.gov.uk

Purpose and intended effects of the measures

Objective

5. The Scottish Executive is seeking to extend statutory planning controls to marine fish farms in coastal and transitional waters. We are consulting on proposals to introduce workable and robust planning controls plus guidance contained in a consultative draft Scottish Planning Policy (SPP) document during autumn 2004. In a broader policy context, the Executive is seeking to support the growth of an aquaculture industry in salmon, other finfish and shellfish that is sustainable, diverse and competitive.

Background

6. The main part of the consultation paper sets out the background to the extension of planning controls, the purpose and intended effects.

Options

7. The Executive has considered options for introducing such controls. Under both of these options, fish farms would still be required to fulfil other regulatory requirements and obtain a lease from the Crown Estate.

8. The 2 options identified are:

• Option 1 — remain with the status quo.
• Option 2 - provide all currently operating marine fish farms with planning consent (subject to the caveats in the consultation paper), but require proposals for new farms, or extensions to existing farms, to be subject to a planning application.

Option 1

9. This Option would see the non-statutory interim and works licensing schemes remaining in place. There would be no effect on existing fish farming enterprises. New fish farming enterprises would still be required to apply for either a development consent or a works licence (in most of Shetland and parts of Orkney) as appropriate. Any future renewal of the consent / licence would remain with the Crown Estate or Shetland Islands / Orkney Council as appropriate.

10. The Crown Estate is owner of almost all seabed and approximately 50% of foreshore around the UK coast. It is required by statute (The Crown Estate Act 1961) to grant consent for use of foreshore and seabed in its ownership. Any permanent structure (or activity that results in equipment or moorings) on Crown foreshore or seabed requires Crown Estate consent.

Option 2

11. Under this proposal, existing fish farm developments would be granted planning consent (subject to the caveats in the consultation paper). All new or modifications to existing fish farms would be required to apply for planning permission from the date of introduction of the provisions. Fish farms will be subject to the statutory provisions of the planning system.

Costs and Benefits

Business sectors affected

12. There are around 330 marine salmon and 360 shellfish farms in Scotland. There are also a small number of sites where other marine species such as halibut, sea trout, cod and haddock are farmed. Currently, virtually all marine fish farming production takes place in the inshore waters of the west coast and Western / Northern islands, where the most favourable operational conditions for marine aquaculture are to be found. Shetland is the most important salmon growing region in Scotland and has been the largest producer since 1996. It currently accounts for 34 per cent of Scottish output followed by the North West Highlands with 28 per cent. By contrast Orkney produces 5 per cent of the output, with between 15 and 20 per cent of output each coming from the South West region (basically Argyll & the Inner Hebrides apart from Skye) and the Western Isles.

13. Annual tonnage figures for individual fish farms range from under 100 tonnes to over 1,000 tonnes though there has been a recent move towards larger units. A typical salmon farm would operate with saltwater cages (rather than tanks) and produce several hundred tonnes of salmon and employ around 3-5 people. The best estimate is that in 2001-2002 there were about 10,000 full and part-time jobs dependent, either directly or indirectly, on salmon growing and salmon processing in Scotland. Of these just over half (5,300) were located in the Highlands & Islands.

14. Concentrating on mussels but also including oysters (pacific and native), queens and scallops, shellfish farming shows a similar distribution to marine fish farms. Mussel growing is concentrated in Shetland and the west coast around Strathclyde. Mussels are generally grown on weighted ropes suspended from buoyed lines or rafts with scallops, which may also be grown in this way, or on the seabed with the area concerned simply being designated by buoys. Oysters may be cultivated either on trays placed below the low water mark or in net bags suspended from ropes.

15. The Scottish Shellfish Farm Production Survey 2002 indicated that just over 100 companies produced shellfish for the table or for on-growing. Primarily production is of mussels with a total value at first sale for all species in the region of £5 million. It also indicated that the industry is dominated by small producers, although there is a continued growth towards large companies contributing significantly to the production of all species. This is reflected in the levels of employment which indicated that the shellfish industry employed 128 full-time and 219 part-time workers during 2002.

Benefits

16. Benefits of Option 1 include:

• There would be no additional costs to developers above what they would currently incur;;
• Developers would be able to have full use of the development consent / works licence obtained;
• The continuance of a well understood regulatory regime.

17. Benefits of Option 2 include:

• Developments would be considered in a plan-led regulatory framework, allowing for the full consideration of development proposals within the planning context;
• The perceived conflict between the dual roles of the Crown Estate as regulator and landlord will be nullified;
• New consent provision would not lead to significant impact on current marine fish farm developments. A benefit could accrue should the deemed consent provision lead to fish farm developments not requiring to periodically renew their development consent;
• Shore based facilities would be considered within the same planning application;
• Fulfilment of Ministerial commitment and satisfying the policy objective of subjecting marine fish farm proposals to a more effective, transparent and democratically accountable system of regulation at a local level.

18. It should be recognised that the extension of the planning system will not duplicate or replace other consent measures; for example discharge consents or other licences.

Costs

19. It is difficult to assess total costs for the options identified above. Limited information is available on the current costs of the marine fish farming industry. These costs would be reflected in maintaining the status quo (Option 1). This has been recognised by the Scottish Executive in A Strategic Framework for Scottish Aquaculture which notes that the Scottish aquaculture industry contends that costs are higher than in competitor countries. The Executive is to commission research to assess such costs. The outcome of this research will help inform the final RIA in relation of the costs attached to Option 1.

Option 1

20. Under the interim scheme, a development consent is required in addition to a lease from the Crown Estate. There is no specific application fee for a development consent, although the applicant is required to pay the cost of placing a copy of the application in a local post office and a notice in a newspaper circulating in the vicinity of the application. We would not envisage Option 1 leading to any additional financial costs on the fish farming industry.

21. However, Option 1 would not satisfy the policy objective of subjecting marine fish farm proposals to a more effective, transparent and democratically accountable system of regulation at a local level. Nor will it remove the perceived conflict of interest of the Crown Estate as landlord and regulator. Also, it would not fulfil the long standing Government commitment to introduce such controls.

Option 2

22. The costs of Option 2 will depend on the outcome of the consultation paper and will be identified fully when secondary legislation is brought before the Scottish Parliament. However, it has been one of our policy objectives to ensure where possible that the new statutory regime is consistent with current practice thus minimising additional costs. Costs will extend beyond developers to planning authorities and also the Scottish Executive and may include: additional staff, the training of staff, additional requirements for development planning. Developers are likely to incur additional costs relating to planning application fees, compliance costs, and staff training.

23. Planning application fees for freshwater fish farms are currently based upon the area of the site and any associated building at levels set out in The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Amendment Regulations 2004. We would expect that a marine fish farm would attract a similar planning application fee to that of a freshwater farm.

24. The full assessment of costs will also balance out some of the potential benefits of the introduction of statutory planning controls such as the introduction of time unlimited consents for developments.

Enforcement and sanctions

25. Option 1 will lead to the continuation of the non-statutory development consent or works licensing regimes, as appropriate

26. The proposals in Option 2 will be enforced through the statutory planning system. New developments and modifications to existing fish farms will be required to apply for planning permission. It will initially be for planning authorities to assess such applications within their designated area. There will also be a role for the Scottish Ministers as part of their statutory role in the planning process. In relation to sanctions, carrying out development without the required planning permission, or failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control. The planning system has a wide range of statutory enforcement powers where there is a breach of such control.

Equity and Fairness

27. The legislative framework and associated guidance will be equally applicable to large and small businesses encompassed by the planning regime, irrespective of which Option is taken forward. Due to the concentration of fish farms of the west coast and in the western and northern isles, both Options will have disproportionate effect on local authorities in those areas.

Small Firms Impact Test

28. The finfish farming industry is dominated by larger producers. The larger producers tend to be concentrated in Shetland with the smaller companies mainly based in North West Scotland. The 2002 Scottish Fish Farm Annual Production Survey indicated that 76% of overall salmon production is produced by 15 companies.

29. The shellfish farming industry remains dominated by Small and Medium Enterprises though there are a number of larger companies which contribute to the overall levels of production.

30. We will undertake a further analysis of the proposals on small and micro businesses following the consultation period.

31. Small and micro business stakeholders are accordingly asked to comment on the impact on them of these proposals.

Competition Assessment

32. We envisage that these measures are likely to have a broadly neutral effect on competition. The Scottish fish farming industry is already moving towards fewer and larger sites with the two largest finfish companies harvesting approximately 50% of production in 2000. However, as noted above, the shellfish farming industry remains dominated by small producers. We do not envisage either Option having significantly disproportionate effects on different firms. currently placed within the market.

Consultation

1. Within Government

33. The consultation paper has been the subject of consultation within the Scottish Executive.

1. Public Consultation

34. The Executive consulted on the principles of extending planning controls in 2000. The question of how to introduce a workable and robust system is now being considered following the introduction of primary legislation and is the subject of public consultation. The consultation period will run until January 2005.

Monitoring and Review

35. Should the status quo be retained (Option 1) the current regimes will remain in place without monitoring or review.

36. Under Option 2, the effectiveness of the legislative framework and associated guidance will be monitored by feedback from stakeholders as part of the Executive’s on-going review of the statutory planning system.

37. For Option 2, the Executive is committed to ensuring that this legislation and associated guidance are, and remain, fit for purpose. In line with Scottish Executive guidance we will review the effectiveness of the legislation and guidance through a review Regulatory Impact Assessment within 10 years of the legislative framework coming into force. We envisage the review will therefore take place before summer 2005.

Summary and recommendation

38. Option 1 — retain the status quo

39. Option 2 — extend statutory planning controls to cover marine fish farming.

40. It is recommended that Option 2 be taken forward as it will fulfil the policy objectives listed in paragraph 17.

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