Independent review of Scottish aquaculture consenting

Strengthen the pre-application process

• Inform developers of the process and ensure the SSPO Industry Protocol for Pre-Application is readily available on the Scottish Aquaculture website.
• Review the SSPO Protocol, update for the shellfish industry and include clear guidance on how to initiate discussions with relevant authorities, regulators and statutory consultees.
• Ensure the Protocol includes an up-to-date pro-forma with an information checklist to be provided confidentially to statutory consultees allowing identification of immediate showstoppers.
• Support a tiered pre-application discussion process so that advice can be updated when relevant information becomes available e.g. benthic surveys.
• Explore potential scope for a pre-application screening checklist approach which leads to a 'likely to be consentable' or 'not likely to be consentable' first step before discussion with the competent authorities ^[9]

LAs

Marine Scotland

The Crown Estate

Introduce consistent format for co-ordinates, site name and summary information

• Standardise the required site summary information across all applications.
• Standardise format of co-ordinates across all applications. Seek agreement rom regulators as to the appropriate format. Use the LOA as first form completed, allowing developers to copy into other forms. The Crown Estate to provide a shape file based on LOA, allowing the developers to submit this with all further applications. Recommend that LOAs be included for all applications where additional (new) seabed extents are required.
• Promote, assist and support the industry in improving the quality of application submissions providing requisite attention to detail of all specific requirements.

The Crown Estate

MS-LOT

SEPA

MSS-FHI

LAs

Update of Working Arrangements document

• Reflect current arrangements and agree most efficient engagement with consultees.
• Clearly identify responsibilities across authorities/regulators and statutory consultees.
• Ensure it is available on the Scottish Aquaculture portal.
• Update via frequent review cycles to ensure any changes are accurately reflected e.g. every three years.

All regulators and consenting bodies

All statutory consultees

Integrate wellboat Marine Licence into the CAR Licence

• It is understood that this would require one additional sentence to be added to the CAR Licence.
• It is assumed that this would cover all wellboat discharges.
• It is noted that SEPA and the finfish industry support this consolidation of licences.

SEPA

MS-LOT

Update Scottish Aquaculture portal

• Ensure it includes easily accessible links to all relevant licence/consent applications.
• Include all relevant regulation, guidance and advice.
• Provide up-to-date contacts for key personnel..
• Include detailed information on all planning consent ( i.e. on the map) and allow direct access to monitoring and survey reports where possible.
• Include link to SEPA's webpage that displays all CAR applications.

Marine Scotland

SEPA

Crown Estate

Food Standards Scotland

LAs

Support provision of electronic application forms

• Ensure forms can be downloaded and competed electronically ( e.g. word) rather than hand written for Marine Licences and Planning Permission application forms.
• Review formatting of Marine Licence (which currently has various fonts and font sizes)
• Within the Marine Licence form include a check box stating whether the site is within a Harbour Authority area or not, and if so, which Harbour Authority.

MS-LOT

LAs

Update EIA template

• Review EIA template (after the Working Arrangements document has been updated) to ensure structure/roles are addressed and that information requirements and format can be optimised.
• Ensure fit for purpose and supports streamlined, site specific reporting.
• Provide guidance on what should be included within a Screening/Scoping report.
• Provide links to relevant guidance for completing EIA topics, including landscape and visual and commercial fisheries.
• Marine Scotland Science to provide clear guidance on information requirements.

Marine Scotland

LAs

Marine Scotland Science

Hold a Landscape and Visual Impact Assessment workshop between SNH, LAs and industry to:

• Provide practical advice on what is required within LVIA.
• Discuss how viewpoints are chosen.
• Share knowledge on expected standards of assessments.
• Provide an opportunity to agree with industry an effective, practical approach to implementing the current landscape/seascape policy of SNH and LAs.

SNH

LAs

This option considers combining the moorings and equipment Marine Licence(s) required for finfish and shellfish aquaculture into the Planning Permission process.

Within the current consenting regime an aquaculture Marine Licence considers navigational safety (markers, lighting etc), while Planning Permission considers all other aspects of navigation such as the amenity of an anchorage, recreational use by yachters etc. Information required within a Marine Licence application has normally already been provided as part of the Planning Permission application, questioning the need for both. Duplication also occurs across consultation processes for both statutory and public consultations including:

• Statutory consultees having to respond to two separate applications at two separate occasions for the same site, often repeating the response provided at Planning Permission in their Marine Licence response.
• The public consultation periods are not concurrent (as planning permission is required prior to obtaining a Marine Licence); this results in the requirement for two separate newspaper adverts and ultimately adds an additional 2-4 months to the process ( i.e. the time it takes to secure a Marine Licence).

The e-portal system hosted by Local Authorities for Planning Permission allows easy access to documents, is transparent, and user friendly.

Technical insight provided by statutory consultees with a navigational remit ( MCA and NLB) is unambiguous and considered with high regard.

Communication between key statutory consultees is well established.

There is a clear understanding of what constitutes a navigational issue, and these are often addressed during pre-application discussions, minimising refusals.

Navigation is not a contentious issue nor is its assessment subjective.

It is noted that section 51 of Marine Act allows for delegation of marine licensing functions to a public body ( e.g. LA) by Order in Council.

The duration of the Marine Licence (which requires renewal every 6 years) is linked to the need to review the location of the site and update the UK Hydrographic Office of any changes - consideration on how this would be maintained is required if the Marine Licence was to be amalgamated into Planning Permission (which is generally permanent, but can be temporary e.g. 10-years).

The procedures for statutory consultees responding to Marine Licences are well established with standard responses from SEPA and SNH (in progress), and clear work patterns/schedules for MCA and NLB.

Marine Licences are required for many different types of marine developments, so removing the requirement for aquaculture to have them could impact high-level considerations of all Marine Licences, both at a Scottish and UK level.

MCA and NLB are non-statutory consultees to the Planning Permission process, but statutory consultees to Marine Licence.

One Planning Permission application form currently covers both finfish and shellfish, with many sections irrelevant to shellfish.

Amalgamating Marine Licence into Planning Permission would:

• Reduce consultation fatigue, burden and repetition, particularly for statutory consultees.
• Remove duplication of effort for form filling by developers.
• Reduce possibility of public confusion over two separate adverts and public consultation periods.
• Provide a clear understanding on how and where navigational issues are addressed.
• Remove the need for two separate Habitat Regulation Appraisals and subsequent Appropriate Assessments.
• Provide an opportunity to introduce shellfish and finfish specific application forms.

Amalgamating Marine Licence into Planning Permission could:

• Deliver a stream lined consenting process.
• Reduce the overall time taken to obtain consent.
• Reduce the number of consents required and therefore reduce the complexity of the entire process.

Review the moorings and equipment Marine Licence form for finfish and shellfish aquaculture, determine any sections that are not covered by planning permission and amalgamate them into the planning permission application form.

This will allow Marine Licences to be awarded by default when Planning Permission has been consented. This action amalgamates the application processes, but does not remove the Marine Licence altogether.

[It is recommended that this action be prioritised].

Short

Low

Local Authorities; MS-LOT, Marine Scotland

Use application form as updated in 1.a to develop one specific form for shellfish and one for finfish.

This will reduce the burden, eliminate confusion and assist the shellfish industry in completing application forms.

Short

Low

Local Authorities, Marine Scotland

Update the consultation status of MCA and NLB to statutory in the planning permission process.

[It is recommended that this action be prioritised].

Short

Low

Local Authorities, MCA, NLB

Consider aligning the (currently 6-year) review cycle, that updates UK Hydrographic Office, into a condition of planning, subject to consultation with NLB and agreement with LAs.

Medium

Low

MS-LOT, LAs, NLB

Remove aquaculture from Marine Licencing requirements via legislative change.

This should be considered after reviewing experience with the above arrangements (1a-1.d) and would fully integrate the objective of Marine Licensing (ensuring navigational safety) within Planning Permission.

Long

High

MS-LOT, Local Authorities, Marine Scotland

This option considers the development of an Aquaculture Act - it is essentially a 'clean slate' option.

Scottish aquaculture has emerged over the last 30-40 years and so has been considered through revision of a number of legislative instruments across several jurisdictions. The consenting arrangements reflect this, consisting of a seabed lease, CAR licence, Planning Permission, Marine Licence(s) and the authorisation to operate an Aquaculture Production Business.

An Aquaculture Act would present an opportunity to address all of the issues identified within this review of the Scottish aquaculture consenting process. It would provide a framework for legislation to be specifically designed for the aquaculture industry that could: simplify the application process; stipulate and enforce time limits for the application process; provide efficiency improvements and coordination between sector authorities; introduce the ability to transfer and mortgage licences etc.

Some consultees from the finfish aquaculture industry commented that the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") is primarily designed for terrestrial planning and is not fit for purpose when considering aquaculture. The definition of development in the 1997 Act (Section 26(6)) has been interpreted as meaning that the removal of equipment from the sea (including for repair and/or cleaning) extinguishes any planning permission for fish farming at that site ^[10] . There is concern that the 1997 Act does not give due regard to aquaculture as an activity in the dynamic marine environment and is not flexible or efficient enough for dealing with changes that may be required on a biological timescale.

Local Authorities involved in finfish and shellfish aquaculture have developed significant knowledge in this area since 2007.

The current consenting system is robust and respected by industry.

The current consenting regime under LA jurisdiction introduces the following characteristics:

• Based in the local community
• Local accessibility to planning staff for both developers and the local population
• Well established planning practices
• Transparency in the decision-making process
• Political accountability

The current consenting regime under LA jurisdiction allows public concerns about the industry's public accountability and environmental sustainability to be addressed.

The resource and effort required to develop and implement new legislation would be very high.

The timeframe for delivery would be long term.

The proposed quick wins and recommendations of this report may be placed on hold if an Aquaculture Act is taken forward thereby losing the potential for short-medium term improvements while details of an Aquaculture Act are developed.

The consultees and regulating authorities are likely to remain the same, and the consent regime/requirements are likely to remain as robust; therefore a huge amount of work could take place with little fundamental change.

This could lead to centralisation of the consenting process and a loss of local accountability. This is contrary to the ethos of local decisions made locally.

It is considered more advantageous to codify a system that works efficiently, rather than using an Act to fix problems.

A specific Aquaculture Act could consolidate all consents; remove duplication in consultation, application forms and Habitat Regulations Appraisals; minimise variations in approach between Local Authorities; ensure minimal delay associated with additional information requests and ensure appropriate assessment and advice on wild fish interactions.

An Aquaculture Act could potentially result in the Local Authorities' licensing and development management role being transferred to another body ( e.g. Marine Scotland), but this would be dependant on the details of the Aquaculture Act developed.

All changes identified within the other options assessed could be delivered through a new Aquaculture Act.

A specific Aquaculture Act enabling the details and specifics of the sector to be appropriately addressed.

Review the definition of fish farming as a 'development' within the 1997 Act (as set out in Circular 1/2007 Planning Controls for Marine Fish Farming) to allow aquaculture related equipment to be partly or wholly removed for normal husbandry operations without relinquishing planning permission ( e.g. specify its change to a 'use' as it is for other terrestrial business activities such as caravan parks).

[It is recommended that this action be prioritised].

Short-medium

Medium

Marine Scotland, Scottish Ministers/Scottish Government

Reconsider the potential to codify existing legislation into an Aquaculture Act when the consenting process is considered to be efficient/optimal e.g. via a review in 5 years.

Long

Low-high

Marine Scotland

The current consenting regime does not prescribe the order in which CAR and Planning Permission should be obtained. This often results in CAR being obtained first, followed by Planning Permission (as the latter is often informed by the former), which means that many elements of the application processes are repeated, resulting in duplication and a prolonged process.

A CAR licence sets site-specific limits on the amount of finfish that can be held in aquaculture cages and the amount of medicines and chemicals that can be used. CAR is not applicable to shellfish and therefore this option is only of relevance to finfish aquaculture.

Information within CAR, relating to the amount of fish and treatment of sea lice, informs the Environmental Impact Assessment undertaken as part of the Planning Permission process.

The CAR models used by SEPA are provided to the industry allowing simulations to be completed by the industry prior to formal submission. This reduces the risk of not obtaining consent, and supports the industry in investigating the potential for new sites or expansion to existing sites.

SEPA CAR modelling is currently being updated.

The guidance provided by SEPA and the processes involved in determining whether a CAR licence should be granted are well understood and not dependant on other consents being in place.

The CAR determination process by SEPA is relatively straightforward and associated consultation processes do not generally result in contentious representations.

SEPA are currently reviewing their CAR application form with a view to streaming and improving efficiency - improvements and lessons learnt from other types of CAR licences will be reflected in this update.

Applying for CAR then Planning Permission in sequence ( i.e. not aligned) spreads the costs of applications, including associated surveys, studies and application fees. This reduces the financial risk to the aquaculture company, in that if CAR is not successful, then Planning Permission application fees have not been wasted and EIA studies have not commenced.

If alignment occurred from start to finish then determination outcomes could be dependant upon the timescale of the slowest process.

Aligning CAR and Planning Permission consents would allow key stages/tasks to be undertaken concurrently, including:

• Pre-application discussions
• Statutory consultation periods
• Public consultation periods (and associated newspaper adverts)

Aligning these tasks would reduce duplication and reduce the overall timeframe of obtaining consent.

Aligning tasks would not influence the result from one on another and therefore avoid any bias being given towards a specific outcome.

Aligning tasks would promote information sharing with the aim of reducing time spent collating any requested additional information via economies of scale ( e.g. if additional benthic surveys required by two separate authorities these could be carried out concurrently).

Aligning consents would remove the need for two separate reports and consultations on Habitat Regulation Appraisals and subsequent Appropriate Assessments (if required). [NOTE: SEPA and LAs would remain responsible for carrying out relevant HRA sections, but with an output of one single report allowing consultation related to HRA ( e.g. with SNH) would be aligned.]

Aligning tasks would support the EIA process and ensure all relevant data/surveys inform both CAR and EIA simultaneously.

Provides an opportunity to consider revocation of CAR in the event of non-utilisation.

A streamlined consenting process delivered efficiently, reducing the timeframe by up to 16 weeks ( i.e. in comparison to when CAR is obtained prior to Planning Permission).

A more robust pre-application discussion stage, with greater clarity over what information is required to support consents, early indication of showstoppers and therefore reducing risk to developers.

Aligning tasks would ensure that each process was fully aware of the aquaculture developer's intentions and work towards closing the loophole related to biomass being consented under CAR ^[11] , but not considered within planning.

Agree working procedures and arrangements between Local Authorities, SEPA and all statutory consultees to enable the alignment of CAR and Planning Permission consents and therefore a fast-tracked consenting process.

[This could be delivered as part of the Working Arrangements document update or as a stand alone procedure]

Medium

Medium

LAs, SEPA, Marine Scotland, SNH, DSFB, Historic Environment Scotland

Support facilitation of one HRA and associated Appropriate Assessment by standardising the format for reporting and setting out clear procedure ( e.g. within Working Arrangements document)

Short-medium

Low

LAs, SEPA, SNH

Implement a pilot period to test appropriateness of aligned consents.

Assess outcome of the pilot period to determine if alignment should be made mandatory.

Medium

Low

LAs, SEPA

The current consenting process requires aquaculture developers to submit each application separately to the relevant competent authority as follows:

• Application for Lease Option Agreement is submitted to the Crown Estate
• Application for CAR licence is submitted to SEPA (finfish only)
• Application for Planning Permission is submitted to the relevant LA
• Application for Marine Licence(s) is submitted to Marine Scotland Licencing Operations Team
• Application for authorisation to operate an Aquaculture Production Business ( APB) is submitted to Marine Scotland Science Fish Health Inspectorate
• Application (or Notice to exercise LOA) for a seabed lease is submitted to the Crown Estate

The onus is on the aquaculture developer to manage the submission of these applications and to follow/chase the process as determinations are made.

The roles and responsibilities of competent authorities and statutory consultees are clear and well understood (although not accurately reflected within the 2010 Working Arrangements document).

In general, responsible individuals within each authority/organisation have remained consistently in place and are known and well respected by industry and others.

The LA e-portals are effective in providing transparency and easy access to documents.

A one-stop shop could be seen as introducing an extra administrative step to the process and reduce contact between industry and the regulators responsible for approving consents/licences.

It could be administratively complicated and expensive to set up.

If not managed appropriately it could become more cumbersome than the current system.

A delay in one aspect of the consenting process could impact all others and thereby increase resources needed by regulating authorities to stop and re-start their determination process.

A one-stop shop removes the flexibility that aquaculture developers currently have in submitting one application at a time e.g. in order to spread costs (although a staged payment process could address this).

Increases risk taken by aquaculture developers if one aspect is refused, while all processes have been instigated and paid for (although as above re staged payment).

There is potential for similar efficiencies to be achieved without complete overhaul of the process ( e.g. via Option 1).

Could remove the 'local element' of fish farm consenting.

If there is centralised determination, then regulators responsible for monitoring operator compliance may not have been responsible for drafting the licence conditions that they are monitoring against. This could affect the timeous, enforceability, relevancy and accuracy of conditions.

A one-stop shop would provide a single contact point for all application submissions making it more straightforward for developers to submit applications.

The single contact point would drive the application/consenting process thereby assisting and navigating the developer throughout: from submission to determination.

The one-stop shop would facilitate efficient dialogue between the applicant and relevant authority/statutory consultee if additional information is requested.

It has the potential to prevent confusion when dealing with similar issues under different consenting regimes.

The one-stop shop could be housed within an existing competent authority such as Local Authorities, Marine Scotland or the Crown Estate.

A streamlined and efficient consenting process, reducing the overall time taken to obtain consents.

Review efficiencies achieved by Options 1 and 3 (after they have been fully implemented) to assess results and determine whether a one-stop shop option would provide further gains.

Long

Medium

Marine Scotland

This option principally considers where decisions on wild fish interactions are made within the consenting regime.

The following decisions, advice and considerations related to sea lice and wild salmon currently occur within the consenting regime:

• Scottish Environment Protection Agency ( SEPA) regulate and consider the use of veterinary treatments to treat sea lice on farmed fish, but do not assess the increased sea lice levels in the wild as a result of the farmed fish biomass; they do not consider the efficacy of the medicines in treating the sea lice, but do consider the implications of potential overuse and increased residue concentration;
• Marine Scotland Fish Health Inspectorate (MS-FHI) regulate sea lice in terms of protecting the health of the farmed stock by considering the efficacy of chemical treatments and assess sea lice management strategies for satisfactory measures of control and eradication of parasites, but not in relation to protecting wild fish [it should be noted that this is not undertaken as a requirement for obtaining consent, but as part of FHI protocols during operation of a fish farm];
• Marine Scotland Science ( MSS) advise the Local Authorities ( LAs) on the efficacy of treatments regulated by CAR and on the status of wild fish in a given area (though it is understood that this advice is mainly generic in nature as a consequence of the lack of scientific analysis/evidence);
• Scottish Natural Heritage ( SNH) and District Salmon Fishery Boards ( DSFBs) are statutory consultees to the Planning Permission process, so have the opportunity to provide comment and advice on interactions with wild fish, and to state their position in relation to the impact assessment.
• LAs interpret the EIA undertaken by the applicant and advice given by MSS, SNH and DSFB to determine whether potential interactions with wild salmonids are acceptable.

LAs, statutory consultees ( SNH, DSFB) and finfish aquaculture industry all recognise that LAs may not be the most appropriate authority to make decisions related to the potential impact of farmed and wild salmonid interactions. The problem relates to LAs not being given appropriate or decisive advice on this matter from the relevant statutory consultees ( MSS and SNH) and must interpret generic advice to make site-specific decisions on whether potential interactions between farmed and wild salmonids are acceptable - an area that is not within their current technical skill set or expertise. In part this is due to a lack of scientific evidence, but also because there is not a clear remit for one agency to take responsibility for providing expert or site-specific advice on this issue.

This option considers the movement of wild fish interactions out of Planning Permission (by LA) and into the framework of an existing competent authority e.g. SEPA (via CAR licence) or MSS-FHI (as part of current operational requirements or via Authorisation to operate an Aquaculture Production Business ( APB)).

SEPA currently make the decision in relation to other technical aspects of biomass, including fish farm effluent discharge to water environment and benthic deposition of food and fish faeces, which are currently assessed within a CAR application and have well-established protocols in consulting with statutory consultees.

Both SEPA and MSS have models to assess dispersion from a fish farm. SEPA undertake detailed modelling of discharge patterns within the water column to inform the permissible level of medicines within the CAR licence. MSS are understood to have a sea lice dispersal model, but the extent to which this is utilised to inform consenting decisions is unclear.

MSS-FHI collate significant amount of data via sampling of fish farm sites across Scotland (based on level of risk H, M, L). There must therefore be an opportunity to assess this data.

SEPAs current remit does not cover wild fish interactions and they may not have sufficient expertise or knowledge in this area.

The CAR licence may not be fit for this purpose and would require significant revision to cover wild fish interactions, potentially risking the current efficient process.

Moving this issue to SEPA might not solve the issue of obtaining decisive advice from relevant statutory consultees, and simply act to shift the burden of decision and responsibility.

MSS-FHI consider the health and welfare of farmed fish, and undertake sampling from farms to monitor fish condition including sea lice levels. Marine Scotland Science Freshwater Fisheries Laboratory ( MSS-FFL) undertake wild salmonid monitoring. MSS-FHI could therefore be best placed as the competent authority on this topic, with MSS-FFL providing advice.

Moves away from established EMPs being introduced by LAs.

Address biomass consenting loophole

Would not remove the need to consider wild fish within the EIA, but move this decision related to wild fish interactions out of LA responsibility.

Allow an opportunity to improve monitoring and reporting of sea lice within farms.

Allow an opportunity to update and implement the MMS modelling of sea lice to assess the potential risk to wild salmonids and inform consenting decisions.

Provide clearer remit of responsibilities ensuring consenting decisions sit with the most appropriate regulator/authority.

Potential to ensure enforceability once consent is granted i.e. via review of monitoring and requiring management action if necessary (currently within MSS-FHI remit for operation fish farms).

Ensure wild salmon interactions are appropriately regulated.

Improve decision-making processes.

Ensure that wild salmon interactions are the responsibility of the regulator/statutory consultee with the most relevant expertise in this area ( i.e. MSS-FHI and MSS-FFL).

To support the analysis of risk - ensure monitoring and reporting of sea lice within farmed salmonids is reported at a site level. This will require discussion and agreement between the finfish industry and MSS-FHI on how this is to be implemented, recorded and reported.

[This assumes the decision remains within Planning Permission in the short-term]

Short-medium

Low-medium

Finfish industry, MSS-FHI

To address provision of scientific advice - form a joint agency approach ( e.g. as part of the National Technical Group, which is currently being formed/under discussion) between MSS-FHI, MSS-FFL, SNH, DSFBs and SEPA to take account of information on sea lice levels, treatments, wild fish monitoring and Natura information to enable provision of site specific advice and evaluation that gives a clear steer as to when an aquaculture proposal should be considered acceptable or not with regard to potential wild fish interactions. This could be based on an assessment of risk in data deficient instances.

[This assumes the decision remains within Planning Permission in the short-term]

Short- medium

Low- medium

SNH, MSS-FHI, MSS-FFL, SEPA, DSFBs

Update/expand current sea lice modelling tools used by MSS to model sea lice dispersal from a fish farm to inform consenting decisions ( i.e. provide outputs for the joint agency to review and inform their advice).

[This assumes the decision remains within Planning Permission in the short-term]

Short- medium

Medium

MSS, MSS-FHI, MSS-FFL

Move the decision of consent related to wild fish interactions out of Planning Permission and into the remit of MSS-FHI (supported by advice provided via the joint agency (5b)). This could be implemented by expanding the remit already under MSS-FHI control during fish farm operations ^[12] and via expansion of the APB authorisation at the consenting stage, subject to advice/agreement from MSS-FHI.

Medium- long

Medium-high

MSS-FHI