Planning Circular 1/2015: relationship between the statutory land use planning system and marine planning and licencing

Aquaculture

Planning permission and consents

89. The Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") defines fish farming as the breeding, rearing or keeping of fish or shellfish. Since 2007 marine fish farming has required planning permission from Local Authorities in accordance with the 1997 Act. This applies to all new fish farms out to 12 nautical miles including modifications to existing ones (although the role of planning authorities currently only extends to 3 nautical miles). Fish farming is therefore unique amongst marine activities in that it requires a consent from a terrestrial planning authority. Aquaculture other than fish farming, such as seaweed cultivation, requires a marine licence from Marine Scotland and a works licence in Shetland and certain parts of Orkney. In the future, should fish farming extend beyond 12 nautical miles a marine licence from Marine Scotland would be required as the primary consent to develop.

90. Prior to 2007 marine fish farming development was leased and consented either by the Crown Estate or, in their respective areas, by Orkney Islands Council and Shetland Islands Council. Marine Scotland is undertaking a process (the Audit and Review process) to determine whether certain fish farms (typically farms granted consented by the Crown Estate or by the Orkney and Shetland Islands Councils prior to 1 April 2007) should be granted permission to operate under section 31A of the 1997 Act.

91. Certain permitted development rights exist for fish farms that enable minor changes to be made to farms without the need to apply for planning permission. These rights, other than to change between certain fish species, are subject to a process of prior notification and approval by the planning authority.

92. As well as planning permission, all fish farms need a number of additional consents to operate. These include:

• an Aquaculture Production Business Authorisation by Marine Scotland's Fish Health Inspectorate ( FHI)
• a licence from Marine Scotland in relation to navigational aspects such as fish farm cages and barges.
• a Controlled Activity Regulations ( CAR) licence from SEPA under The Water Environment (Controlled Activities) (Scotland) Regulations 2005.
• a licence from Marine Scotland in relation to discharges from wellboats.
• Seabed lease from The Crown Estate

93. In accordance with the Act, Scottish Ministers can, by Order, provide for fish farming in a specified area not to be development under the terrestrial planning system ^[13] and to be regulated by marine licence instead. An Order can only be made with the consent of the affected planning authority. In effect, this means that new fish farm development would no longer require planning permission but would be regulated by Marine Scotland marine licensing procedures. Unless an Order is made, fish farm development consents will remain a function of planning authorities throughout Scotland.

Determination of planning permission

94. Terrestrial planning authorities must determine applications for planning permission in accordance with terrestrial development plans. Development plans provide locational guidance for new development, and may identify where new fish farms are likely to be acceptable. Development plans, and in some cases associated supplementary guidance, also provide the policy context for fish farm development. Non-statutory planning guidance for fish farming which a planning authority might have prepared and any guidance issued by statutory consultees may be material to decision making. The latter includes Marine Scotland's Locational Guidance and Scottish Natural Heritage's Marine Aquaculture and the Landscape , which are referenced within National Marine Plan policies.

95. A Working Arrangements document sets out the respective roles and responsibilities of each of the statutory consultees in relation to fish farm planning applications. The Scottish Salmon Producers Organisation has produced a good practice guide for industry engagement in the planning process: Industry Protocol for Preparing Planning Applications for Aquaculture Development .

Marine planning for aquaculture

96. Marine plans apply to all marine aquaculture, including fish farming as defined by the Town and Country Planning Act, and other marine aquaculture such as seaweed cultivation.

97. The National Marine Plan sets out high level objectives for the aquaculture industry. It also contains policies on the sector's sustainable growth, including where new aquaculture development should be permitted and its interaction with other sectors. These policies largely reflect the same principles upon which development plans and consenting decisions by terrestrial planning authorities are based. As regional marine plans are developed it will be important for them to conform with the National Marine Plan on aquaculture, and to be compatible with development plans. Non-statutory planning guidance on aquaculture may be a material consideration in decision making and should be taken into account by regional marine plans. This will help ensure consistent decision making on fish farm and other aquaculture proposals.

Interaction between development plans and marine plans

98. Planning consent for fish farm proposals within 12 nautical miles is a function of terrestrial planning authorities and decisions will be made in accordance with development plans. 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 (see paragraphs 33 and 35). Development plans and marine plans will direct decision making based on common evidence and policy, minimising the potential for ambiguity.

99. 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.

100. 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.