Those of us actively involved in the saveseilsound Campaign Group have found that trying to come to grips with the present system for the regulation of industrial fish farms is a bit like trying to peel an onion. As you remove each layer another becomes apparent underneath and the whole exercise is tricky and likely to cause tears.
For anyone looking for a comprehensive explanation of the whole process and the statutory roles of the various bodies involved there is a lot of information available online, including on our own website here and also on those of other campaigning organisations and charities.
This note is an attempt to look at some of the process difficulties local authorities have in handling planning applications.
Before 1 April 2007 fish farms did not require planning consent. Instead they simply got a licence from the Crown Estate Commissioners, an unelected London-based body of gentlemen, one of whose missions in life is to maximise the income from the Scottish seabed for the benefit of the Crown.
Pity the planners
Passing an element of control to local authorities introduced an element of apparent democracy but it has come at considerable cost to the bodies affected.
Of the thirty two local authorities in Scotland only about one half border the sea and of those only a handful border the aquaculture coast down our Western seaboard, because the Scottish Government insists
‘There is a presumption against development of marine finfish farm developments on the north and east coasts to safeguard migratory fish species.’ (my emphasis)
Repeated as a sort of mantra, this implies that wild salmon based on the West coast for some reason don’t bother to migrate.
When a government consultation on the proposal to introduce planning control took place in 2005, a number of us in mid- Argyll took part and submitted that the local authorities affected were being asked to take on a regulatory role for which: ‘they have absolutely no experience and no current personnel … the use of the planning process to achieve [an apparent element of democracy] is deluded.’
Of course our views were ignored and it’s no consolation to have a feeling of ‘I told you so.’
Fish farms were subsumed into the existing system for planning on land – with no concern for how inappropriate that might be and no additional resources.
There was also, of course, no resulting revenue as offshore installations don’t pay non-domestic rates – as you can see here.
This seems terribly unfair on local residents who finance the system through council tax and suffer the consequences in terms of damage to tourism-dependent micro-economies, having fish farms imposed on them.
It also means that planning officers have had to learn new disciplines and adapt existing procedures to situations for which they were never intended.
Conundrums and confusions
A major problem is drawing a distinction between matters which are structural and those which are operational.
Where consent is given for a land-based structure, such as a factory, the main concern will be how the proposal sits in the existing development plan and applicable policies. The local authority will require that road access is safe and that all ancillary services for dealing with waste and so on are in order.
Thereafter how the site is operated will be policed by other bodies, be they departments of the local authority itself or of central government.
With an offshore installation, the planning authority is being asked to give consent to what is effectively a process rather than a fixed physical structure.
Once consent is given the local authority will have virtually no control over how operations are conducted and certainly no practical means, boats, divers, etcetera, of exercising any control it may have.
Matters are made more complicated because of a change in practice brought in by the Crown Estate Commission, without any democratic scrutiny.
Originally fish farm leases were strictly limited, the intention being that after the initial term of ten years or so, the farm would shift to a new site and allow the seabed under the original one to recover.
This never happened and in practice the Crown Estate Commission just renewed leases on the same site – but at least the good intention was there.
Now leases are indefinite, so that once planning consent is given, there is likely to be an installation of some sort on site for the rest of time.
At the same time leases became transferable and hence marketable.
Effectively it looks as if a new right of property in the seabed has been created by accident, despite the public interest therein being legally ‘inalienable’.
This means that while an applicant company will describe the methods proposed for installing, maintaining and servicing the operation, none of this will be binding later.
Methods for feeding the fish, dosing them with routine medications and pesticides, dealing with mortalities both routine and in catastrophic events and eventually culling them and removing them to market will all be subject to change without local authority control.
Further, the company itself may change, or be taken over, or the site sold, as has happened in the past and is happening again now for example at Ardmaddy, with Morpol being taken over by Marine Harvest.
Against this background it isn’t at all clear what powers the local authority has.
New Scottish Government guidelines – and commentary
The Scottish Government has published guidelines which can be found in full here:
I have extracted the paragraphs relevant to fish farms, having edited out material not relevant to our local situation in mid-Argyll, with my comments in bold after. I have taken the current proposal at Ardmaddy as an example to focus my comments, for obvious reasons.
’106. Fish farms are likely to require land based facilities and where possible these facilities should be considered as part of or simultaneously with the application for the fish farm. Opportunities for shared use of onshore facilities including jetties, piers and ancillary facilities should be promoted and, wherever possible, access to the foreshore for recreational purposes should not be impeded. Established anchorages and harbours should be safeguarded.’
Comment: The original application by Lakeland Marine Farm indicated that the site would be serviced from Loch Craignish. There is currently information suggesting that at least some of the servicing is in fact based at the Craobh Haven Marina. As recent articles in the Sunday Herald and For Argyll have shown what happens to fish mortalities is not known by any of Argyll & Bute Council, Marine Scotland and SEPA. Should not someone in a position to insist on an answer at least ask? Argyll & Bute Council have formed the view that disposal of mortalities once a site is in operation is not a “land use management” issue and in planning terms I think they’re probably right. This seems to be a regulatory gap with potentially hideous consequences.
’107. When determining planning applications, authorities should take into account the direct and cumulative effects of the proposed development on the environment, including carrying capacity, visual impact and the effects on the landscape, marine historic environment and the sea or loch bed. The needs of local communities and other interests should also be taken into account alongside the economic benefits of the sustainable development of the fish farming industry and the operational needs of fish farms. The capacity of an area to accommodate fish farm development can be considered on a loch or voe wide basis. Where adverse cumulative impacts are significant and cannot be mitigated, planning permission should not be granted. Fish farms can be fitted into their surroundings to avoid or minimise visual intrusion and mitigation strategies should be incorporated into development proposals. Applications should be accompanied by information on the extent of the site, type, number and physical scale of structures, the disposition of structures across the lease area, on-shore facilities, ancillary equipment, lighting and noise impact and proposed restoration following cessation of operations.
Comment: Argyll & Bute Council say that they are bound by the advice they receive from Marine Scotland, SEPA and Scottish Natural Heritage in relation to some of these matters, in particular those that relate to the environment and reflect the obligations of the United Kingdom under the relevant European Directives. Yet none of these bodies has carried out any assessment of the cumulative effects of all the existing fish farms in the waters of Seil, Shuna and Melfort, nor it seems do they intend to do so.
Ultimately it is Argyll & Bute Council that will in law make the decision that allows or refuses consent for the development at Ardmaddy South to go ahead and it will be the Council on the receiving end of any subsequent complaint to the European Commission.
In a development of the type applied for at Ardmaddy the guidelines require there to be an Environmental Impact Assessment. One trusts that this will be commissioned for Ardmaddy South and that a full report will be available to all parties before any hearing takes place.
’108. There are a number of regulatory controls covering fish farming in addition to planning permission, including the rights and interests of the Crown Estate as owner of the seabed. The planning system should not duplicate other control regimes such as controlled activities regulation licences from SEPA or fish health, sea lice and containment regulation by Marine Scotland. Planning authorities and applicants should engage with other regulators to improve understanding of relevant requirements. Voluntary Codes of Good Practice have been produced by fish farming stakeholders which address a range of issues outwith planning control such as cage and equipment design, security, management and operational practices. These codes provide the basis for certification of standards and practices put forward in support of planning applications for fish farms.”
Comment: From the above one might think that there are obligations on government bodies in relation to the fish health and sea lice in general. This appears not to be so, as the only obligations are to ensure the health of the farmed fish in the cages, not the wild fish swimming nearby in their natural environment. This is despite Marine Scotland appearing to accept that plumes of sea lice eggs will be discharged from fish farms and infect local salmon and sea trout, none of which of course has the ‘benefit’ of being treated with pesticides.
It seems the impact of sea lice on the natural fauna falls squarely on Argyll & Bute Council. Last August the Director of Planning Angus Gilmore wrote to Mike Russell MSP in the following terms: ‘there is one area of complication associated with SEPA’s role and that relates to the ability to treat sea lice in a manner sufficient to safeguard the interactions between farmed and wild salmonids. Whilst Marine Scotland are concerned with the health and welfare of farmed fish and will require sea lice treatment to secure their interests, and SEPA consent both biomass and the administration of treatments in the interests of pollution control, it is for planning authorities to have regard to the interests of wild fish as part of the planning process.’
’109. There is potential for conflict between fish farming and local fishing interests, including commercial inshore fishing and recreational fishing. The effects of fish farm development on traditional fishing grounds, salmon netting stations and angling interests should be considered.
Other uses of the inshore area, such as recreational use, should also be taken into account when identifying potential development areas and sensitive areas in development plans and when determining planning applications.
Comment: You bet there’s potential for conflict!
Argyll and Bute Council Supplementary Guide
Finally, in connection with the current draft local development plan Argyll & Bute Council has just published, a ‘Supplementary Guide’ which includes the following in relation to fish farms:
’6.1.81 DC9 Operational impact (waste, noise, light and odour)
‘New aquaculture developments should be designed so as to minimise any negative impacts arising from their operation and will be assessed to ensure adequate waste management measures; no significant adverse environmental or amenity impacts arising from the servicing and operation of the site; and satisfactory measures for the restoration of the site, including removal of redundant equipment.
’6.1.83 Waste management
‘There is potential for aquaculture development to generate waste during construction, operation and decommissioning. Waste can affect both visual amenity and the natural environment. For example residual waste from operations includes redundant parts of fish cages, plastic bags, old ropes, and discarded buoys and floats.”
It seemed strange that the guidelines refer to things like plastic bags but not to dead fish.
Was the draftsman unaware that accidental mortalities are a by-product of the process?
The list is not said to be exclusive and, by analogy, it seems that dead fish are indeed included in the concept of waste.
I asked Argyll & Bute Council about this and understand that the wording is in draft form only and the final version may make no reference to ‘assessment of waste management measures’, leaving these for someone else outside of the planning process to worry about.
The problem is that nobody wants to be that someone else.
Ewan Kennedy, saveseilsound