5 Consultation Analysis
The consultation database collated 647 comments based on consultation with 37 companies, authorities and organisations; these entries were categorised into strengths, issues, suggested solutions or upcoming actions (Figure 5.1). On average the finfish industry and Local Authorities ( LAs) raised the most issues (14 and 15 per company/authority respectively); while other regulatory/consenting bodies and the shellfish industry raised the fewest (on average 6 per company/authority).
Strengths, issues and suggested solutions are discussed in the sections below. Information pertaining to upcoming actions have not been analysed, but used to inform the relevant sections of this report ( Section 3 and Section 4).
Figure 5.1: Number of strengths, issues, suggested solutions and upcoming actions listed by consultees
The strengths and positive elements of the current consenting regime cited by consultees is presented by topic in Figure 5.2.
The pre-application discussions have been consistently highlighted across all consultees as being very helpful in flagging up issues, pre-empting progress on non-viable sites, and helping to smooth the application process. These pre-application discussions are undertaken voluntarily, set up by the developer and undertaken via face-to-face meetings, telephone and email on a one-to-one basis, or as a round table meeting.
The robust and rigorous assessment process for all consents was also consistently praised. The consenting regime provides confidence to the industry that they are there for the right reasons and supports the knowledge that the environment is not being inappropriately impacted. The Scottish finfish industry consider that applying such stringent environmental quality standards assists Scottish salmon in achieving its market price.
In addition, planning decisions are noted to be made with democratic accountability and the transparency provided by the LA electronic portals was considered to add strength to the process.
The improved knowledge base of all those involved within the Scottish aquaculture sector was highlighted; including the industries ability in understanding and completing application forms and associated studies/ EIAs, and the LAs general knowledge of aquaculture and the marine environment.
Figure 5.2: Strengths of the current consenting system listed by consultees
The availability of helpful guidance was highlighted by the finfish industry, including SEPA's guidance on CAR applications and undertaking hydrographic surveys, SNH's advice and guidance on landscape and visual issues, and the general user friendliness of templates and application forms.
Other strengths mentioned included:
- Helpfulness and positive approach taken by the Crown Estate (particularly noted by the shellfish industry);
- The fact that the majority of applications are successful;
- The usefulness of the Screening & Scoping stages of EIA (as per reasons associated with pre-application discussions);
- Efficient consultation processes were noted by regulators, including standardised responses;
- Improved quality of applications, as industry gains experience;
- The flexibility in the order in which CAR and Planning Permission can be obtained;
- The ability to transfer seabed leases and CAR licences; and
- The ability to make changes via PDR, as opposed to submitting Planning Permission applications.
5.2 KEY ISSUES
The issues, frustrations and problems encountered by all stakeholders involved in the consenting process are presented in Figure 5.3 (top 10 issues) and Figure 5.4; the main issues identified are discussed further below.
Wild and farmed salmonid interactions
How wild and farmed salmonid interactions are considered within the consenting process was the top issue raised across the board by the finfish industry, the LAs and statutory consultees. The concern is focused on the level of advice and guidance provided by statutory consultees (Marine Scotland Science, SNH and DSFBs) and who is responsible for interpreting that advice ( LAs).
As background, in the Scotland's National Marine Plan Chapter 8 addresses Wild Salmon and Diadromous Fish and in terms of Marine planning policies: WILD FISH 1 states: The impact of development and use of the marine environment on diadromous fish species should be considered in marine planning and decision making processes. Where evidence of impacts on salmon and other diadromous species is inconclusive, mitigation should be adopted where possible and information in impacts on diadromous species from monitoring of developments should be used to inform subsequent marine decision making. This extract from Scotland's National Marine Plan introduces the issue of wild salmon and diadromous fish into the Planning Permission decision making process, as well as within the EIA process.
It is considered by finfish industry stakeholders that in the last 5 years, no one organisation has taken the responsibility of dealing with sea lice interactions. This has been to the extent that one statutory consultee ( DSFB) considers interactions between wild and farmed fish to be an unregulated area.
However, in the last year Local Authorities ( LA) may ask that Environmental Management Plans ( EMPs) be developed and implemented as part of a condition of consent. Monitoring of farmed fish is essential and integral to an effective EMP. In some cases monitoring data is provided to the SSPO and aggregated into a publically available report, but this is not always the case.
In addition to EMPs, the LAs may grant temporary planning permission ( e.g. for 10 years). This is commended by the DSFB as they consider it a mechanism for action to be taken if sea lice issues and/or unacceptable interactions with wild salmonids occur. However, temporary planning permission adds significant financial risk to any finfish aquaculture business.
Putting EMPs and 10-year temporary planning aside, the crux of the issue relates to the planning system, which is designed to consent the physical infrastructure of a fish farm, having to also address scientific areas of biomass, carrying capacity and fish health issues to which they may not have expertise or the most relevant knowledge. LAs should receive advice from the relevant statutory consultees ( MSS, DSFB and SNH) on this area, but often feel that this advice is not site specific, generic in nature and therefore difficult to interpret.
It is considered that there is a lack of definitive guidance or guidelines on how to assess and deal with interactions between wild and farmed salmonids, and that a clear set of monitoring requirements and appropriate criteria which set limits triggering management actions if proven necessary should be developed.
Figure 5.3: Top 10 issues raised by consultees during consultation
Figure 5.4: Other issues and/or frustrations raised by consultees during consultation
Duplication within application forms/consents
Duplication was consistently raised in relation to application forms - notably for summary information and site details that are required in different formats within every application form, including formats of coordinates and scale of maps.
Apparent duplication is considered across regulators' responsibilities, however in some instances this is appropriate and necessary due to the regulator's remit. For example, SEPA's regulatory role in relation to sea bed impacts does not absolve the LA from its responsibility to consider sea bed impacts as part of its biodiversity duty.
Three quarters (75%) of the finfish industry, all of the shellfish industry, and 6 regulators/statutory consultees cited duplications between Marine Licences (for moorings and equipment) and Planning Permission. This is related to the fact that Marine Licences focus on the navigational safety of moorings and equipment, while planning considers all other aspects.
Delay due to additional information and survey requests
Delays due to requests for additional information are a cause of frustration for all parties and can result in lengthy delays and significant extra cost to the developer.
The finfish and shellfish industry noted statutory consultees requesting further information through the planning process on issues which are generally not relevant to Planning Permission. Examples include MSS asking how mortalities are to be removed from the cages, MSS requesting data on deoxygenation levels, MSS requesting biosecurity information and SEPA looking for Equilibrium Concentration Enhancement values for nutrient. Many of these aspects are required by relevant authorities to make judgment and/or allow them to provide a comprehensive statutory consultee response. Nevertheless, there remains confusion in relation to the specifics of information requirements, why it is needed and whose responsibility it falls under.
While MSS cite applicant's misinterpretation of Scoping Opinions or lack of clarity/specifics on what information is required and the quality of that information as being the reason for additional information requests.
Variations in approach by Local Authorities
Variations in approach between LAs were highlighted in a number of areas, including the implementation of Environmental Management Plans ( EMPs), and introduction of temporary planning permission (which last 10 years); and perceived general view of aquaculture developments (with industry consultees citing some LAs as being very supportive and helpful, and others being generally more negative and less supportive of development).
In relation to EMPs: there is a perception that Highland Council and Argyll & Bute Council require EMPs for all new Planning Permission applications, while the Western Isles Council only require them when considered necessary.
Statutory consultees are approached numerous times in relation to the same development, at different phases of the consenting process i.e. because the consents/licences are not aligned.
Non concurrent public consultation phases also occur across consents/licences and developers are required to take out separate newspaper adverts for each of them. This was considered to cause duplication in effort and have the potential to cause confusion within local community.
Landscape and Visual Impact Assessment
Visual impact was cited as a reason for several rejections or withdrawal of planning applications. Landscape and visual impact assessment is noted as being costly, time-consuming and of variable quality. Some LAs noted that landscape and visual impact assessment is gradually improving, while the industry commented on impracticable viewpoints being requested.
Town and Country Planning Act
The key concern noted by the inclusion of aquaculture in the Town and Country Planning Act relates to aquaculture being considered a development associated with infrastructure, rather than the activity of growing finfish or shellfish within the marine and freshwater environments. The interpretation of the Town and Country Planning Act results in Planning Permission being relinquished if all the equipment at an aquaculture site is removed ( e.g. for maintenance, cleaning etc). This is considered by industry to impact their normal husbandry operations.
Biomass Consenting Loophole
A biomass consenting loophole has been highlighted by regulators and statutory consultees i.e. that planning permission can be obtained for new infrastructure without biomass considerations, then CAR obtained for an increase in biomass, which is then added to the site without having been assessed via EIA or planning (and therefore wild salmonid interactions have not been considered). In this example an increase in production capacity/biomass has been consented via CAR by SEPA, without reference to or consultation with the planning authority.
It is understood that SEPA is moving away from imposing biomass limits as regulatory conditions in CAR licences and thus the Biomass Loophole will no longer be relevant.
Duplication of Habitat Regulation Appraisals
It was noted by statutory consultees and regulators that sometimes two or even three Habitats Regulation Appraisals and associated Appropriate Assessments can be undertaken by each competent authority for the same development.
Environmental Impact Assessments
LAs note that the overall quality of Environmental Statements ( ESs) are variable. Some are very site specific and readily understandable by the general public. Other ESs are often a collection of scientific documents, not easily read, and mitigation measures difficult to identify. The increasing interest in local communities in applications and the quality and quantity of representations has helped focus the industry on producing better ESs. Fish farm ESs tend to be of a poorer quality than for those for terrestrial development, but the quality is improving. In the past ESs tended to cover in excessive detail about lice treatment chemicals and how they worked, rather than concentrating on whether they would impact on the wider environment. ESs are now much more targeted and precise in what they include. There is a general recognition in EIA for the need to move away from quantity of submitted material to more site-specific assessment and mitigation.
Statutory consultees feel that too much generic text is used within ESs that does not respect the specific nature of individual sites, noting that all assessments should be specific to the site under investigation.
It was also noted that developers tend to submit Screening and Scoping reports using the EIA Template (although not required to do so). The LAs note that the industry, by using this template, generally provide considerably in excess of the information required for screening and scoping purposes. Often the information submitted comprises the majority of the information required as part of an EIA application. This information overload compromises the efficient operation of the screening and scoping stages.
Industry noted two EIA topics that are onerous to complete: Landscape and Visual Assessment (as previously discussed) and assessing potential impacts on commercial fisheries.
Lease Option Agreements
Number of Lease Option Agreements (set at 5 per company at any one time) was seen by two companies as being somewhat limiting when exploring development opportunities, but the majority felt that this limitation is fair, justified and appropriate from a resource perspective.
5.3 OTHER ISSUES
Further issues mentioned frequently, but not included within the scope of this work include:
1. Marine planning - Uncertainty on how the National Marine Plan and Local Development Plans will work together and how the sensitivity mapping project currently being finalised by Marine Scotland will influence the identification of suitable sites for development
2. Acoustic Deterrent Devices ( ADD) and European Protected Species ( EPS) licencing: LAs often seek to protect cetaceans from noise disturbance as a result of the use of ADDs by conditioning approvals to prevent the use of ADDs. MSS are a statutory advisor during the planning process and MS-LOT are the licensing authority for EPS licensing in the marine environment. It is noted by industry that SNH often advise against ADDs and when an EPS Marine Licence is sought for an ADD, MS-LOT request advice from SNH as a statutory consultee; this is seen by the industry as a conflict of interest with no opportunity for independent appraisal or appeal. EPS licencing is not required as part of the consenting process, but during the operation of a fish farm and is therefore not considered further in this study.
3. Fees - it is commonly acknowledged that shellfish farms struggle with planning fees in relation to their turnover/profit levels - yet there seems little means under the planning rules to resolve this issue. It is understood that the level of fees and how they are applied is currently under review; it is therefore not considered further within this study.
4. Permitted Development Rights ( PDR) - the current PDR system is not considered to function well for both the LAs and the industry. Due to the high cost of planning fees, the industry tends to minimise the red line boundary of the proposal based on the surface level area. This provides no flexibility to use PDR to add to/change equipment, which in turn require formal planning approval, which is more time consuming and expensive. If planning fees were reduced, the industry could utilise slightly bigger red line planning boundary lines to allow greater flexibility and the benefits of PDR. It is understood that there was a recent consultation on PDR and that the legislation is currently under review by Marine Scotland; it is therefore not considered further within this study.
5.4 SUGGESTED SOLUTIONS
Solutions suggested by consultees are presented in Figure 5.5, and Table 5.1 indicates where these solutions have been considered within the report.
Figure 5.5: Potential solutions proposed by consultees during consultation
Table 5.1: How potential solutions raised are assessed within this report