Independent review of Scottish aquaculture consenting

4 Current Consenting Process

4.1 OVERVIEW OF THE CURRENT CONSENTING PROCESS

An overview of the current consenting requirements for finfish, shellfish and cultivated seaweed aquaculture is presented in Table 4.1, which is colour coded for each licence/consent type.

Table 4.1. Summary of licences, consents and assessments required for Scottish aquaculture including finfish ( FF), shellfish ( SF) and seaweed ( SW)

The following sections provide a summary of each of these licences/consents including individual process flowcharts (a process overview basemap is provided in Figure 4.10).

A summary of the common scenarios to gain consent for a new finfish and shellfish sites is presented in Figure 4.1 (including time periods). Certain consents/licences should be obtained before applying for others; for example a Marine Licence (for equipment and moorings) requires Planning Permission and Controlled Activities Regulations ( CAR) licence to be granted before applications will be accepted. There is no prescribed order in which Planning Permission and CAR should be obtained, however some regulators and statutory consultees prefer scenario A where a CAR licence is in place prior to submitting the Planning Permission application (as CAR surveys and modelling will inform this process). Scenario A for a finfish development is therefore presented in more detail in Figure 4.2.

Prior to authorising an Aquaculture Production Business ( APB), Marine Scotland Science Fish Health Inspectorate ( MSS-FHI) will undertake a gateway check to see that all other licences/consents are in place; this is also the case for The Crown Estate who require all necessary consents in place prior to a full grant of lease.

Figure 4.1: Scenarios for achieving consent for new finfish and shellfish aquaculture sites in chronological sequence (time periods are in weeks)

Note: Scenario E relates to major applications. If major application were submitted for finfish developments then 12 weeks would be added to the process for PAC in scenarios A, B and C. Note that the appeals process for each of the licences/consents has not be included.

Figure 4.2: Overview of Scenario A in more detail, identifying key tasks in chronological sequence

4.2 REVIEW OF CURRENT CONSENTING REGIMES

4.2.1 Planning Permission

Marine finfish and shellfish farming developments (out to 12 nautical miles ^[5] ) came under the jurisdiction of the Planning System in Scotland on 01 April 2007, when the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 came into force. Prior to this date, development consents for marine fish farms were under the jurisdiction of the Crown Estate, or in Shetland and parts of Orkney, the Shetland and Orkney Islands Councils respectively. It is noted that cultivated seaweed farms do not require planning permission under the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007.

The statutory planning authorities are now the mainland coastal councils, primarily the Highland Council, Argyll & Bute Council and North Ayrshire Council, and the three island councils of Shetland Islands Council, Orkney Islands Council and Comhairle nan Eilean Siar (Western Isles Council). The planning permission process for finfish and shellfish aquaculture is presented in Figure 4.3.

The Town and Country Planning (Scotland) Act 1997 considers fish farming as a development with the following definition (Section 26(6) of the Act):

Where the placing or assembly of any tank in any part of any inland waters for the purpose of fish farming there would not, apart from this subsection, involve development of the land below, this Act shall have effect as if the tank resulted from carrying out engineering operations over that land; and in this subsection-

"fish farming" means the breeding, rearing or keeping of fish or shellfish (which includes any kind of crustacean or mollusc);

"inland waters" means waters which do not form part of the sea or of any creek, bay or estuary or of any river as far as the tide flows; and

"tank" includes any cage and any other structure for use in fish farming.

In relation to marine planning for aquaculture and the interaction with marine plans and development plans the Marine Planning Circular 1/2015 (available here) states that:

Terrestrial planning authorities are also required to accord with marine plans in decision making unless relevant considerations indicate otherwise, and to have regard to marine plans in preparing development plans. Development plans and marine plans will direct decision making based on common evidence and policy, minimising the potential for ambiguity.

Marine Scotland is undertaking a three year project to identify areas of opportunity and restriction for both finfish and shellfish sectors. This work will contribute to the development of spatial policy to be reflected within both development and marine plans.

Scottish Ministers expect that, as the evidence base develops, marine plans will provide spatial frameworks for decisions about the location of new aquaculture development. The consenting process will remain with terrestrial planning authorities.

Formal pre-application consultation ( PAC) is required for planning permission applications for major and national developments. Pre-application discussions ( PAD) are non-formal, voluntary and confidential (if required); and can occur for any type (minor/major/national) of development. PAD is focused on early communication between aquaculture developers and planning authorities, regulators, agencies and other bodies who will have to be consulted on any subsequent planning application. The intention of PAD is to better understand the potential for showstoppers that may be applicable to specific sites and provide developers an opportunity to adjust applications in light of these discussions thereby reducing risk of delays and/or refusal. The Scottish Salmon Producers Organisation ( SSPO) have developed a Industry Protocol for Preparing Planning Applications for Aquaculture Development as a guide to the finfish and shellfish industry, and a Pre-Application Protocol for the finfish industry.

Statutory consultees to the planning permission process are: Marine Scotland Science (on behalf of Scottish Ministers ^[6] ), SNH, SEPA and DSFB(s).

In terms of the statutory timeline for consenting, a planning authority has up to 16 weeks to determine applications for planning permission for major developments and up to 8 weeks to determine applications for planning permission for local developments. For EIA applications, the planning authority should determine the planning application within 16 weeks from the date of receipt of the environmental statement. These periods can be extended by agreement.

Details of the number of planning applications submitted for finfish and shellfish aquaculture is provided in Appendix 4. Across a five-year period (2010-2014) more than 95% of finfish applications and 98% of shellfish applications have been approved by the six Local Authorities. This high rate of success can in part be attributed to the pre-application submission work, which minimises the risk of 'show stoppers' post submission.

Figure 4.3. Planning permission process for finfish and shellfish aquaculture

4.2.2 Environmental Impact Assessment ( EIA)

The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011 implement the Council Directives (85/337/ EEC and 97/11/ EC as amended) on the assessment of the effects of certain public and private projects on the environment. Under the 2011 Regulations, an EIA, which is an assessment of the impact of the project on the environment, must be undertaken where any proposed finfish aquaculture development is to be carried out in a sensitive area, is designed to hold a biomass of ≥100 tonnes, will extend ≥0.1 hectare surface area of marine waters, including any proposed structures or excavations, or the installation resulting from the development is designed to produce more than 10 tonnes of dead fish weight per year.

An EIA is not required for shellfish farms or seaweed cultivation. An EIA template has been developed by SARF and is available for finfish farm developers to follow, although it is noted that the template has no statutory basis and it is up to the developer to compile an Environmental Statement as per Schedule 4 of the 2011 Regulations. The resulting Environmental Statement will accompany the planning permission application submitted to the relevant LA. Only LAs can act as the competent authority for EIA and the associated screening/scoping. The EIA process is presented in Figure 4.4.

Statutory consultees to this process are: Marine Scotland, SEPA, SNH, Scottish Water, adjoining Local Authorities where relevant and District Salmon Fishery Board(s).

Figure 4.4. Environmental Impact Assessment process for finfish aquaculture

4.2.3 Controlled Activity Regulations ( CAR)

SEPA enforce The Water Environment (Controlled Activities) (Scotland) Regulations 2011 by issuing a CAR licence which sets site-specific limits on the amount of fish that can be held in the cages and the type and amount of medicines and chemicals that can be used.

CAR licence applications are supported by survey information undertaken by the aquaculture business on the physical, chemical and biological condition of the seabed and water column. AutoDepomod modelling software is provided by SEPA to the aquaculture industry to allow them to conduct computer-modelling simulations showing, for example how waste will be dispersed from a site. SEPA then verify data submitted with the CAR licence application before undertaking their own simulations (using the same AutoDepomod modelling software). The CAR licence process for finfish aquaculture is presented in Figure 4.5.

SEPA can withdraw or vary an authorisation if operators fail to comply with conditions of their CAR licence or if sites are not meeting SEPA published standards on an ongoing basis. However, the granting of a CAR licence is not dependent on planning permission being consented and cannot be revoked (for reasons other than those previously stated). Therefore a CAR licence could be granted, but not in use ( e.g. if planning permission was refused). In such instances the biomass in the CAR licence is assumed to be in the water, whether it's present or not, and this could potentially impact the overall carrying capacity in an area as considered within Locational Guidelines ^[7] .

There are no statutory consultees to the CAR process, although it is anticipated that SEPA will routinely consult Marine Scotland and/or SNH in connection with a fish farm application. Furthermore, there is no statutory requirement for public consultation, with SEPA only requiring advertsment when an application is considered likely to have a significant adverse impact or an impact on other water users.

The statutory timeline for consenting is 16 weeks from validation of application.

Figure 4.5. Controlled Activities Regulation ( CAR) licence process for finfish aquaculture

4.2.4 Marine Licence

With respect to finfish and shellfish aquaculture, three types of activities require a marine licence(s):

• Equipment - including mussel lines, fish farm cages, walkways/pontoon;
• Moorings ( i.e. deposits on the seabed); and
• Discharge of sea lice treatments from wellboats.

In relation to equipment and moorings, the marine licence focuses only on potential hazards to navigation and conditions may require appropriate markers and lighting. A separate marine licence for 'discharge of treatment agents' is also required for discharging from a wellboat. This is not focused on navigational safety and is not specifically needed to gain consent for a fish farm, but will be applied for during the operational phase, if required.

A marine licence (under the Marine (Scotland) Act 2010) combines the previously separate Food and Environment Protection Act 1985 ( FEPA) and Coast Protection Act 1949 ( CPA) consents. The relevant marine licences for finfish and shellfish aquaculture are focused on navigational safety (previously covered by a CPA consent).

One specific marine licence application form has been developed to cover 'moorings and marine finfish & shellfish farms'. This undergoes regular review by MS-LOT to update where necessary with a view to seeking continual improvement. Companies are encouraged to submit an application to cover equipment and moorings in a single marine licence. Seaweed cultivation does not require planning permission, and therefore it is not appropriate for the marine licence to be limited to navigational safety considerations. This is because other environmental factors (that would have historically been addressed under FEPA) are not addressed at any other stage of the cultivated seaweed consenting process. As such, the 'marine construction' application form currently covers the marine licence for seaweed cultivation.

The marine licence process for finfish, shellfish and seaweed aquaculture is presented in Figure 4.6. Statutory consultees to this process are: SNH, SEPA, MCA and NLB.

There are no statutory timelines for marine licensing, however MS-LOT have a target timeframe of 14 weeks for licence determination.

4.2.5 Seabed Lease

The Crown Estate has a statutory duty to obtain a return for any area of seabed or foreshore within Crown ownership that is used for commercial purposes. This encompasses the entire seabed around Scotland, out to 12 nautical miles (with the exception of one or two privately owned areas) and around 55% of the foreshore. Aquaculture operators therefore require a seabed (or foreshore) lease from the Crown Estate before production can commence.

To allow aquaculture businesses the opportunity to explore potential areas for development, the Crown Estate allow a company to apply for a Lease Option Agreement ( LOA). This secures the area of seabed, while planning permission and other licences are sought. Once all relevant consent and licences have been granted for the site, the Crown Estate will then proceed with granting a seabed lease. An aquaculture company is allowed up to five LOAs at any one time. LOAs expire after three years, with the condition that a planning permission application should be submitted to the relevant LA within two years of taking out the LOA, and one year's allowance for the determination process.

The Crown Estate is therefore in the unique position of making determinations at the very beginning of the consenting process, and at the very end. The main application determination process occurs at the LOA granting stage, so this element of the process is not repeated unless details have changes, such as location, area or equipment.

The terms and standard conditions for a LOA are available here.

The process to obtain a seabed lease is presented in Figure 4.7.

Figure 4.6. Marine Licence process for finfish, shellfish and seaweed aquaculture through Marine Scotland Licensing Operations Team ( MS-LOT)

Figure 4.7. Process to obtain a seabed lease

4.2.6 Authorisation to operate an Aquaculture Production Business ( APB)

Finfish and shellfish farm businesses require authorisation to operate an Aquaculture Production Business ( APB) from Marine Scotland Science Fish Health Inspectorate ( MSS FHI) before any development takes place. The APB authorisation includes details of each individual site that will be operated by the aquaculture business. It is the business, rather than a site that is authorised. However, as part of the authorisation details of all sites (name, location, address etc.) must be listed within a register (available to view here).

The APB authorisation is in relation to the animal health requirements for aquaculture animals and products thereof, and the prevention and control of certain diseases in aquatic animals. Authorisation, subject to conditions, is granted where the operation of the business will not lead to an unacceptable risk of spreading disease. Inspections are undertaken using a risk-based approach (sites that require a high surveillance frequency are inspected annually, sites with a medium surveillance frequency are inspected every 2 years, and finfish sites with a low surveillance frequency are inspected every 3 years whilst shellfish sites are every 4 years).

No statutory consultees are involved in this process and applications are not subject to public consultation. APB authorisations are rarely refused, although conditions may be imposed. Authorisations can be suspended or revoked if a company is not complying with conditions or requirements as per the Aquatic Animal Health (Scotland) Regulations 2009.

The authorisation to operate an APB is completely stand alone from the other consenting regimes, and while the MSS FHI would look to see if other required consents and licences are in place before issuing authorisation, they are not legislatively required to do so.

The process is presented in Figure 4.8.

Figure 4.8. Authorisation to operate an Aquaculture Production Business process through Marine Scotland Science Fish Health Inspectorate

4.2.7 Habitats Regulations Appraisal

The Conservation (Natural Habitats, etc.) Regulations 1994 and its amendments require all competent authorities to carry out an appropriate assessment ( AA) of a plan or project if that plan or project is likely to have a significant effect on a Natura site. This process is now known in the UK as a Habitats Regulations Appraisal ( HRA) ( SNH, 2015).

HRA is a rigorous precautionary process (Figure 4.9) centred on the conservation objectives of a designated Natura site's qualifying interests. A competent authority must not authorise a plan or project unless, by means of this appropriate assessment, they can ascertain that it will not adversely affect the integrity of a Natura site. The only exception is if there are no alternative solutions, and there are imperative reasons of overriding public interest for the plan or project to go ahead ( SNH, 2015).

In relation to aquaculture, an HRA may be carried out for the same site for each application sought. The LA may carry out an HRA in relation to planning permission; Marine Scotland may carry out an HRA in relation to a marine licence; and SEPA may carry out an HRA in relation to a CAR licence etc.

Figure 4.9. Habitats Regulations Appraisal process for finfish, shellfish and seaweed aquaculture

4.2.8 Permitted Development Rights

Permitted development rights ( PDR) for fish farms are regulated by the Town and Country Planning (General Permitted Development) (Fish Farming) (Scotland) Amendment Order 2012 and permit the addition or change to equipment on a farm and changing production from one species to another without the need to apply for planning permission.

PDR allows the following equipment changes to be accommodated within the existing planning boundary of a site, subject to a set of prescribed limits:

• Replacing an existing finfish cage or installing an additional finfish cage ( e.g. amongst other conditions, if <100m in circumference if circular, or < 796 m ² if not circular; and no increase in biomass);
• Replacing an existing feed barge, in the same or a different location, or relocation of an existing feed barge;
• Replacing top nets and their support structures at a finfish farm (if new structures do not exceed 2.5m);
• Deploying equipment temporarily (excluding fish pens) at a finfish farm ( e.g. amongst other conditions, if temporary equipment does not increase total surface area by >1%);
• Adding longlines at a shellfish farm (must not exceed the lesser of 500m ² or 10% of original configuration); and
• Switching species from Atlantic salmon to sea trout, rainbow trout or halibut.

A prior notification is submitted to the relevant LA. This process is not subject to statutory consultation, and it is for the LA to determine whether any consultation is required. The function of PDR is to avoid going through the formal planning process for relatively minor changes to a development.

PDR is currently undergoing an internal review by Marine Scotland and therefore is not considered further within the scope of this project.

4.3 CROSS CORRELATIONS BETWEEN CURRENT CONSENTING REGIMES

4.3.1 Overview of licensing processes

An overview of the Scottish aquaculture consenting regime is presented as an aligned process in Figure 4.10 indicating pre-application, application and consultation stages.

The consultation matrix referred to with this figure is presented in Table 4.2.

As noted in Section 4.1 and illustrated in Figure 4.1 and Figure 4.2, in reality the process is not aligned as CAR is often sought in advance of seeking planning permission. However it serves to illustrate areas of potential duplication along with comparative complexities and timescales.

Figure 4.10: Overview of licencing application processes for Scottish aquaculture

4.3.2 Overview of consultation requirements across consenting regimes

The Planning Permission, CAR licence and Marine Licence processes require formal consultation with statutory and non-statutory consultees; those involved in these processes are listed in Table 4.2. This illustrates a number of duplications in consultations for each process, including some that are statutory to one process, and non-statutory to another including: SEPA, Scottish Natural Heritage ( SNH), Marine Scotland, DSFBs, MCA, NLB, and Historic Environment Scotland.

The Seabed Lease issued by the Crown Estate and the authorisation to operate an Aquaculture Production Business ( APB) issued under MSS-FHI are not included within the table as they do not involve a consultation period; although they both undertake an informal gateway check to ensure all licences/consents have been granted prior to their approval.

Table 4.2: Consultation matrix indication statutory and non-statutory consultees to each of the consenting processes

CONSULTEE BODY	Planning Permission Local Authority	Environmental Impact Assessment	CAR Licence SEPA	Marine Licence MS: LOT
	Formal Consultation	Formal Consultation	Formal Consultation	Formal Consultation
The Crown Estate				Non Statutory
Scottish Environment Protection Agency ( SEPA)	Statutory	Statutory		Statutory
SEPA - Internal Departments			Internal to SEPA
Local Authority ( LA)			Non Statutory
LA - Internal Departments	Internal to LA
Marine Scotland ( MS) on behalf of Scottish Ministers	Statutory	Statutory (for marine only)	Non Statutory	Statutory
MS Science ( MSS) - Environment Programme	Internal to MS	Internal to MS	Internal to MS
MSS - Fish Health Inspectorate	Internal to MS	Internal to MS	Internal to MS
MSS - Freshwater Fisheries Programme	Internal to MS	Internal to MS
Marine Scotland Compliance				Internal to MS
Scottish Natural Heritage ( SNH)	Statutory	Statutory	Non Statutory	Statutory
District Salmon Fisheries Boards	Statutory	Statutory	Non Statutory
Community Councils	Non Statutory
Food Standards Scotland			Non Statutory
Harbour Authority	Non Statutory			Non Statutory
Historic Environment Scotland	Non Statutory	Statutory	Non Statutory
Ministry of Defence [8]	Non Statutory
Maritime Coastguard Agency	Non Statutory			Statutory
Northern Lighthouse Board	Non Statutory			Statutory
Scottish Water	Non Statutory	Statutory
SportScotland			Non Statutory
Transport Scotland	Non Statutory
Fishermen's Associations incl. Inshore Fisheries Groups	Non Statutory			Non Statutory
Environmental NGOs *	Non Statutory
Recreational & local interest groups **	Non Statutory			Non Statutory
Public Consultation	Statutory	Statutory	Non Statutory	Statutory

* For example: Hebridean Whale & Dolphin Trust, RSPB, Whale & Dolphin Conservation Society, Raptor Study Groups (Eagles).

** For example: Royal Yachting Association, West Highland Anchoring Association, Local Amenity Trusts Local Special Interest Groups.

4.3.3 Overview of elements considered within each consenting regime

The overlap of consenting areas and topic areas for key regulators and statutory consultees is presented in Figure 4.11 and Figure 4.12. These demonstrate the complexities of the consenting process and highlight overlap and duplication by topic area and responsibility.

In some cases the same element is covered by different competent authorities, but is examined from different perspectives. For example benthic impacts due to chemical treatments and solid organic waste are assessed by SEPA, while the potential impact to sensitive habitats of equipment and moorings is assessed by LAs within Planning Permission, with SNH providing advice as a statutory consultee. In this example, the overlap is correct and justified.

Figure 4.11: Venn diagram illustrating overlap in consenting areas for key regulators

Figure 4.12: Venn diagram illustrating cross-over in topic areas for key regulators and statutory consultees