Marine planning zones - proposals to extend to 12 nautical miles: impact assessments

Business and Regulatory Impact Assessment (BRIA) – Partial

Note: Relevant sections of this partial Business and Regulatory Impact Assessment will be updated following the public consultation on the proposed extensions to marine planning zones. The final impact assessment will then be published via the Scottish Government Publications Website

Title of Proposal

Proposals to extend marine planning zones out to 12 nautical miles.

Purpose and Intended Effect

Background

There is growing interest within the fish and shellfish farming sector to develop farms beyond 3 nautical miles from the coast. Developments in cage technology make fish farms in this region feasible. This type of innovative development has the potential to reduce environmental interactions and to support fish health and welfare in line with the Vision for Sustainable Aquaculture. There is also increasing interest in the potential for offshore shellfish farms, including through co-location opportunities with other structures.

In 2007 the definition of “development” in the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) was extended to include fish and shellfish farming out to 12 nautical miles. This means all fish and shellfish farms to 12 nautical miles require planning permission from the relevant planning authorities.

The Town and Country Planning (Marine Fish Farming) (Scotland) (Order) 2007 designated Scotland’s marine planning authority zones, however the marine planning zones were only designated out to 3 nautical miles. In practice this means that there is no planning authority to which a developer may submit an application for a farm located between 3 -12 nautical miles.

When the marine planning zones were first designated in 2007, it was considered that it was highly unlikely that applications for planning permissions between 3-12 nautical miles would be lodged in the near future. It was therefore noted in Planning Circular 1/2007 that the Scottish Executive would monitor the situation with further work envisaged during 2007-8 to extend the marine planning zones out to 12 nautical miles. This work was not undertaken and as such there remains a legislative gap.

Objective

Recognising that fish and shellfish farms require planning permission to operate from 3–12 nautical miles, the proposed amendment will extend existing marine planning zones out to 12 nautical miles, allowing developers to bring forward proposals for farm developments, while maintaining consistency in the planning regulations for farms located across the 0-12 nautical mile zone.

Rationale for Government intervention

Scottish Government is making this proposal as it is only through amendment to the existing regulations that this existing gap in the planning process can be resolved. Without intervention, fish and shellfish farms will be unable to be developed beyond 3 nautical miles.

The proposal contributes to the following national planning Framework objectives:

• Economy - We have a globally competitive, entrepreneurial, inclusive and sustainable economy
• Fair Work and Business - We have thriving and innovative businesses, with quality jobs and fair work for everyone

Consultation

Within Government

Planning, Architecture and Regeneration Division (PARD)

PARD have been engaged with throughout the development of this proposal as the amendment will be to planning regulations. PARD have advised on potential solutions to address the outstanding issue, and on best practice for managing a public consultation in regards to amending planning regulations.

Scottish Government Legal Directorate (SGLD)

SGLD have advised on the options to amend regulations to resolve the outstanding issue.

Scottish Government Regulators

Scottish Government regulators responsible for fish and shellfish farming have also been consulted – Marine Directorate Licensing Operations Team and Fish Health Inspectorate.

Public Consultation

Informal consultation has been carried out with planners from local authorities where fish and shellfish farm development currently takes place. consultation when launched.

In addition, informal consolation has taken place with Heads of Planning Scotland (HoPS) and The Convention of Scottish Local Authorities (COSLA)

Informal consultation has also taken place with the other relevant non-SG regulators; Scottish Environment Protection Agency (SEPA) and the Crown Estate Scotland in respect of their role as sea bed owner.

A public consultation will invite formal responses to the proposals form these public bodies and other relevant organisations and stakeholders

Business

We will invite views on this partial BRIA as part of the public consultation. We also intend to promote this consultation to business organisations representing the relevant sectors.

Options

• Option 1 – Do nothing

No regulatory amendments carried out. Fish and shellfish developers will be unable to obtain planning permission to develop beyond 3 nautical miles.

• Option 2 (Preferred Option) – Extend marine planning zones to 12 nautical miles

Consult on proposals to designate the relevant planning authorities and the marine planning zones between 3 – 12 nautical miles. Fish and shellfish developers can apply for planning permission to develop beyond 3 nautical miles.

• Option 3 – Remove requirement for planning permission for fish and shellfish farms located between 3-12 nautical miles

Determine that fish and shellfish farming is not development between 3-12 nautical miles, therefore not requiring planning permission.

Sectors and Groups Affected

Businesses

Fish and shellfish farming businesses are currently prevented from developing farms in the region between 3-12 nautical miles due to the existing gap in planning regulations. Resolving this issue will enable businesses to explore opportunities to site farms in these regions which have the potential to support increased production, reduce environmental interactions and to support fish health and welfare. Development beyond 3 nautical miles has the potential to see innovation delivered in Scotland, alongside realisation of the wider employment and supply chain benefits which will come as a result.

Businesses will be invited to respond to the public consultation. This section of the BRIA will be updated following input from relevant organisations

Local Authorities

Existing regulations require fish and shellfish farms located between 3-12 nautical miles to obtain planning permission, however the current marine planning zones, only extend to 3 nautical miles. This means that prospective developers are unable to make an application for planning consent in the 3-12 nautical mile zone as there is no planning authority designated to whom they can apply to. Extending marine planning zones to 12 nautical miles would designate the planning authorities in the extended 3-12 nautical mile zones and allow local planning authorities to consider applications.

Extension of the marine planning zones would also ensure consistency in the planning application process for fish and shellfish farm development across the 0-12 nautical mile region, which is already well understood by businesses, regulators and other stakeholders.

Initial consultation with relevant local planning authorities, COSLA and Heads of Planning, has found that these organisations are open to the proposal and they will be invited to respond to the public consultation.

Other Regulators

The existing gap in planning regulations does not directly impact on other fish and shellfish farming regulators. However resolving this issue would mean developers are more likely to apply for the other permits required to operate a farm, meaning regulators will need to consider applications for farms in new areas.

Initial consultation with relevant regulators has found that these organisations are open to the proposal and they will be invited to respond to the public consultation. This section of the BRIA will be updated following input from relevant organisations

Communities

The existing legislative gap which prevents businesses from exploring opportunities to develop fish and shellfish farms between 3-12 nautical miles may be indirectly impacting on communities as a block on inward investment into coastal and island communities, resulting in direct and indirect employment opportunities, as well as potential investment in coastal and island infrastructure.

Extension of the marine planning zones would ensure communities remain able to comment on planning applications for fish and shellfish farm proposals, through the existing and well understood mechanisms to do so.

Community groups will be invited to respond to the public consultation. This section of the BRIA will be updated following input from relevant individuals and groups.

Benefits

Option 1: Do nothing

There are no benefits arising from this approach. Fish and shellfish farms have no route to achieve planning permission for farms located between 3-12 nautical miles.

Option 2 – Extend marine planning zones to 12 nautical miles

Will close the existing legislative gap, which Scottish Government has previously indicated would be resolved through extending the marine planning zones.

Provides a mechanism to achieve planning permission.

Will mean there would be consistency in planning requirements for fish farm developments across the 0-12 nautical mile zone, which are already well understood by businesses, regulators and other stakeholders.

Will enable the development of an innovative form of aquaculture that has the potential to reduce environmental interactions and to support fish health and welfare in line with the Vision for Sustainable Aquaculture.

Option 3 – Remove requirement for planning permission for fish and shellfish farms located between 3-12 nautical miles

Will close the existing legislative gap

Costs

Option 1: Do nothing

There would be no direct costs associated with Option 1, however the continuation of the gap in planning regulations may mean reduced inward investment into the Scottish aquaculture sector, as global aquaculture businesses consider opportunities to develop in the 3-12 nautical mile zone.

Option 2 – Extend marine planning zones to 12 nautical miles

There will be Scottish Government resourcing implications to progress with this option, however these will be limited to policy support to analyse the consultation and, where necessary, progress secondary legislation.

The extension of marine planning zones is not considered to have a significant impact on planning authority costs. Planning authorities implement a charging regime to support the planning system which aims to operate on a cost recovery basis. Fish and shellfish farms beyond 3 nautical miles will be subject to similar assessment procedures, including EIA and HRA, and therefore we expect costs of processing application to remain largely the same. If this is found not to be the case, a separate fee structure could be considered for fish and shellfish farms from 3 – 12 nautical miles in future.

Option 3 – Remove requirement for planning permission for fish and shellfish farms located between 3-12 nautical miles

This approach would result in a dual regime ( 0-3 nautical miles vs 3–12 nautical miles), whereas it may be preferential to maintain a consistent regulatory regime for fish and shellfish farms. Particularly in cases where proposed developments may cross over the 3 nautical mile line.

Marine Licensing would become the primary method of consenting fish farms in the 3-12 nautical mile zone, requiring investment in staffing within the Scottish Government’s Marine Licence Operation Team.

It is likely establishing processes for Marine Licensing to assess applications for fish and shellfish farm proposals will take a longer time compared to planning authorities having established processes, allowing applications to be made as soon as the proposed Order enters into force.

Regulatory and EU Alignment Impacts

Intra-UK Trade

Is this measure likely to impact on intra-UK trade? No.

International Trade

Is this measure likely to impact on international trade and investment? Yes – Closing the existing gap in planning regulations will enable businesses to explore opportunities to develop fish and shellfish farms between 3-12 nautical miles, which may result in inward investment

EU Alignment

Is this measure likely to impact on the Scottish government’s policy to maintain alignment with the EU? No

Scottish Firms Impact Test

Views from business and industry interests are will be invited as part of the public consultation process. This section of the BRIA will be updated following input from relevant organisations

Competition Assessment

There are no obvious impacts on competition from the proposed extension to marine planning zones.

The extension will allow fish and shellfish farm businesses to consider opportunities to develop in the 3-12 nautical mile zone. There will also be opportunities for a range of supply chain businesses to compete for contracts to help develop and service any new farms established in the 3-12 nautical mile zone

Consumer Assessment

The Scottish Government definition of a consumer is "anyone who buys goods or digital content, or uses goods or services either in the private or public sector, now or in the future". It is not anticipated that the proposed extension to marine planning zones will have any impact on consumers

Test Run of Business Forms

Implementing the proposed extension to marine planning zones will not introduce any new statutory business forms. The planning application procedures currently used for fish and shellfish farm developments in the 0-3 nautical mile zone, will also be used for applications in the 3-12 nautical mile zone.

Digital Impact Test

It is not considered that the proposed extension to marine planning zones will have any impact on digital technologies or on traditional or offline businesses.

Legal Aid Impact Test

The proposed extension to marine planning zones would not affect claims for legal aid.

Enforcement, Sanctions and Monitoring

The proposal to extend marine planning zones will mean there is consistent approach to regulating fish and shellfish farms within the 0-12 nautical mile zone in terms of planning.

Local authority planners, following due process and consideration of input from statutory and non-statutory consultees, will determine whether or not an application for development of farms within 0-12 nautical miles, are accepted or rejected. The appeals process will also be consistent for applications made for proposed developments across this zone.

Local authority planners will also be able to apply conditions to planning consents for fish and shellfish farms, as is currently the case for farms located between 0-3 nautical miles. Local authorities have a range of enforcement options that can be taken forward should conditions not be met

Implementation and Delivery Plan

Scottish Ministers may by Order, designate a planning authority for an area not currently covered by a marine planning zone. The mechanism for doing this is to amend the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 which sets out the current marine planning zones, and replace them with new marine planning zones which extend out to 12 nautical miles.

Existing legislation requires consultation with local authorities and SEPA before designating or changing the marine planning zones. However, we intend to issue a public consultation on the proposal this autumn, seeking views form a wide range of stakeholders on designating the planning authorities 3 – 12 nautical miles and with the intention of laying an affirmative SSI in the Scottish Parliament in early 2025.

Post-implementation Review

A review of whether the legislation is still fit for purpose will take place within 10 years of the amendment coming into force.

Summary and Recommendation

It is recommended that Option 2 – Extend marine planning zones to 12 nautical miles is put forward in a public consultation as the preferred option to resolve the existing gap in planning regulations, which requires that fish and shellfish farms out to 12 nautical miles require planning permission, but where the relevant marine planning zones only extend to 3 nautical miles.

Resolving this through the preferred option will close an existing legislative gap, which Scottish Government has previously indicated would be resolved through this option.

Will mean there would be consistency in planning requirements for fish farm developments across the 0-12 nautical mile zone, which are already well understood by businesses, regulators and other stakeholders.

It will enable the development of an innovative form of aquaculture that has the potential to reduce environmental interactions and to support fish health and welfare in line with the Vision for Sustainable Aquaculture.

There will be Scottish Government resourcing implications to progress with this option, however this has been addressed by including this work within the annual delivery plans for the relevant directorates.

The extension of marine planning zones is not considered to have any additional costs for local authorities as the planning system operates on a cost recovery basis, with developers being charged for applications made.

Declaration and Publication

Sign-off for Partial BRIAs:

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact has been assessed with the support of businesses in Scotland.

Signed:

Date: 04/09/24

Minister's name: Ivan McKee

Minister's title: Minister for Public Finance

Scottish Government Contact point: Joe Triscott, Marine Directorate