Appendix 2: Review of other consenting regimes
OTHER SCOTTISH AND UK CONSENTING REGIMES OR ADMINISTRATIVE PROCESSES
To explore improvements to the current aquaculture consenting regime in Scotland it is useful to consider other marine consenting processes from within Scotland and the wider UK, and also aquaculture consenting regimes elsewhere, including Norway, with a view to understanding what has and has not worked and recognise any lessons learnt.
Examples explored within Scotland include Marine Licences and Renewables and Harbour Orders. The SEA Gateway process provides an example of an alternative administrative and advisory system. The Planning Inspectorate (for UK nationally significant projects) acts as both a gateway process and consenting authority. The aquaculture sector examples present the different arrangements and legislative requirements in Norway, Europe and Tasmania.
Marine Licensing - Marine (Scotland) Act 2010 and Offshore Renewables
The consenting regime and administrative network for marine licensing was of interest to this project as it provides an example of a 'one-stop-shop' approach seeking to streamline consenting.
In response to perceived challenges in development of offshore renewables, Marine Scotland set up a centralised system for offshore wind, wave and tidal developers to obtain consents/licences for marine renewable developments in Scottish waters. This included:
- Licensing Manual - providing information and guidance to developers on the licensing process and work is under way to update it to incorporate offshore wind licensing elements, policy guidance and licensing policy created by the Marine Act
- Guidance - on surveys, deployment and monitoring requirements
Demonstration Strategy - using monitoring of consented schemes to inform potential future developments
Marine licensing and consenting is led by Marine Scotland's Licensing Operations Team (MS-LOT). MS-LOT provide an impartial single point of contact responsible for the assessment of applications, ensuring compliance with all relevant legislation and the issue of all related permissions.
Marine Scotland are committed to streamlining the consenting process for the offshore renewables sector, seeking to manage the process for both applicants and regulators, and have established a simplified licensing system and a one-stop-shop for consents/licences for offshore marine renewable developments.
Marine Licensing covers the following key development types:
- Coastal and marine developments;
- Offshore wind farms (OWF);
- Wave and tidal power; and
- Removal and disposal of marine dredged material at sea.
A guidance document for developers, regulators, statutory advisors, interested parties and the public was produced in October 2012 (still marked as Draft). It applies to projects within Scottish Territorial Waters (0-12nm) and the Scottish Renewable Energy Zone (12-200nm) and is intended to assist offshore renewable energy developers (wave, wind and tidal developers) when applying for a Marine Licence and consent under the Electricity Act 1989 (as amended) also known as a Section 36 consent. The document provides guidance on the following key areas:
- The licensing process;
- The legislative context; and
- Production of supporting documentation such as Environmental Impact Assessment (EIA) and Habitats Regulations Appraisal (HRA).
The changes to the licensing system were intended to establish a closer working relationship with consulting bodies by running Section 36 (s36) and Marine Licence (ML) applications simultaneously.
MS-LOT co-ordinate the liaison and consultation to ensure issues are raised at the appropriate time. Marine Scotland advise within the Licensing manual that independent planning advice is provided by a separate team in MS Planning and Policy (MSPP). MS-LOT has a close working relationship with key people within statutory and non-statutory consultees including, Joint Nature Conservation Committee (JNCC) and RSPB.
Benefits and challenges
- The guidance provides clear signposting and information requirements for teams progressing through Marine Licensing and s36 applications.
- The consideration and consultation of documents submitted across multiple consent and licensing regimes is co-ordinated - as an example, one EIA document is produced to cover multiple consenting requirements and MS-LOT co-ordinate the consultation.
- Early and effective consultation with key statutory consultees and agencies at EIA Scoping Stage and thereafter during drafting of Environmental Statements is important to avoid late stage issues arising.
The consenting regime and administrative network for harbour orders was of interest to this project as it provides an example of a collaborative / joined-up approach to consenting on a voluntary basis based on an acknowledgement of overlaps in supporting documentation between harbour orders and other linked consenting regimes such as planning or marine licences. Scottish Ministers have powers under section 14 or 16 of the Harbours Act 1964 to make various types of harbour order, for the purposes of introducing new harbour legislation or amending existing harbour legislation in relation to a specific harbour. Transport Scotland administers Harbour Orders on behalf of Scottish Ministers. It should be noted that the HRO process is a legal process and therefore has defined requirements for development and consultation and associated administrative support within Transport Scotland.
Guidance (latest revision 2015) produced by Transport Scotland provides information to prospective applicants seeking to embark on a Harbour Order application and covers aspects such as pre-application consultation, EIA and HRA and consultation and determination on an application.
Transport Scotland is the relevant authority in terms of a Harbour Empowerment Order/Harbour Revision Order and both the HEO/HRO can be aligned with application for Planning Permission and Marine Licence(s). Land based development requirements also require Planning Permission and the EIA/HRA documentation produced across all of the consenting regimes is important to the determination process.
Whilst the guidance is clear that the applicant is responsible for ensuring that they have all of the necessary consents in place prior to undertaking any works proposed, Transport Scotland do indicate willingness to consider aligning the application for the harbour order along with any other consent that may be required such as Marine Licence from Marine Scotland or for Planning Permission from the relevant LA (where the works fall out with those that would otherwise be authorised by section 29 or 35 of the General Permitted Development Order).
Where other consents such as planning permission and marine licence are required, Transport Scotland are committed to work with the other consenting bodies and, where practical, agree a joint approach to environmental assessment and issue a single scoping and screening response for a single Environmental Statement to cover all aspects of a project to streamline the consents process.
- The guidance provides clear signposting and information requirements for teams progressing through complex consenting regimes. There is a clear programme and process from initiation to decision and the guidance includes a checklist for validation of applications and routemap - a gate-check process.
- TS provide a co-ordination role and administer the consenting and licensing requirements including consultation with key agencies
- The consideration and consultation of documents submitted across multiple consent and licensing regimes is co-ordinated - one EIA document is requested to cover the various requirements and TS co-ordinate the consultation.
- Places an administrative burden on the co-ordinating party in Transport Scotland to implement the requirements.
- Transport Scotland are currently progressing a Harbours (Scotland) Bill through Parliament, which seeks to address a number of issues concerning current harbours legislation which includes commitment to increase the efficiency and effectiveness of existing procedures and processes for stakeholders.
Environmental Assessment (Scotland Act) 2005 - Strategic Environmental Assessment and the SEA Gateway
Whilst SEA does not apply to individual aquaculture development applications, the SEA Gateway is an example of an administrative support where there are multiple steps to complete and multiple consultations to be completed within set timescales.
In Scotland, the requirements of the EU Directive (2001/42/EC) are taken forward by the Environmental Assessment (Scotland) Act 2005. The Act requires that environmental assessment is undertaken on all public sector plans, programmes and strategies which are likely to have significant environmental effects. The 2005 Act has been in force since February 2006.
The SEA Gateway was set up to administer Scottish SEA coupled with a corresponding network of gateways operated by the Consultation Authorities or CAs (SNH, SEPA and Historic Environment Scotland). The SEA Gateway act as a post-box for the Responsible Authorities (RAs) producing the Plan, Programme or Strategy and associated SEA reporting and with the co-ordinated CA gateways seeks to ensure consultation is carried out in a streamlined manner in line with statutory timescales. The Gateway process works in the following way (from The Scottish Environmental Assessment Review, 2011, Scottish Government):
- Step 1 RA sends the SEA consultation documentation to the Scottish Government SEA Gateway;
- Step 2 the Scottish Government SEA Gateway registers the consultation in its database and sends the relevant documents directly to the CAs (via their SEA gateways) informing them of the statutory or agreed deadline;
- Step 3 the CAs register the consultation in their local casework recording systems (often part of, or linked to, systems for recording other consultations and casework (e.g. planning consultations)) and assign a case officer;
- Step 4 on completion of a response, the CA sends the documentation to the Scottish Government SEA Gateway within the statutory or agreed deadline set;
- Step 5 the Scottish Government, on receipt of responses from each of the CAs, sends these to the RA with a covering letter.
The SEA Gateway Team is based within the Scottish Government and is responsible for administering and recording statutory SEA correspondence. The Scottish Government also has a specialist Environmental Assessment Team that undertakes the statutory assessments required for various Departments; they can provide technical support to the Gateway Team as and when required.
Wider functions carried out by the SEA Gateway include:
- Providing general bespoke advice (non-legal) to RAs on SEA;
- Maintaining a searchable online database of all SEA casework undertaken in Scotland;
- Producing SEA guidance and topic-specific guidance for practitioners;
- Administering the SEA Forum, which offers practitioners an annual opportunity to share experience and hone assessment skills.
- SEA Gateway provides a one stop shop for advice to RAs which has developed and strengthened skills in SEA;
- The Gateway acts as a portal for submission of SEA documents and consultation responses which streamlines the consultation and engagement process; and
- The SEA database provides a significant source of information and best practice guidance regarding environmental assessment which is easily accessible.
- The SEA process and Gateway has taken time to 'bed in' and has required a resource and funding commitment from Scottish Government since inception as well as a commitment from the Consultation Authorities and Responsible Authorities.
- The setting up of a dedicated SEA Gateway and annual review through the SEA Forum have developed skills in SEA in Scotland for both Regulatory Authorities and Consultation Authorities (SNH, SEPA and HES). It has streamlined and signposted the SEA process in Scotland and has ensured transparency of decision making. This approach could benefit other sectors.
The Planning Inspectorate (PINS)
The Planning Inspectorate or PINS process relates to nationally significant projects in England and Wales and whilst aquaculture is not of a scale that would be considered under this consenting regime, it represents an example of a portal used to handle applications at all stages of the consenting process.
The Planning Act 2008 process was introduced to streamline the decision-making process for nationally significant infrastructure projects, making it more transparent and accountable for stakeholders whilst committing to set timescales for determination. The portal addresses the following key stages:
- Acceptance - Gate-checking to ensure the application meets the standards required to be formally accepted for examination.
- Pre-examination - public consultation over 3 month period
- Examination - Planning Inspectorate has six months to carry out the examination. Representations including public consultation and other statutory consultation
- Decision - Planning Inspectorate must prepare a report on the application to the relevant Secretary of State, including a recommendation, within 3 months of the six month examination period. The Secretary of State then has a further 3 months to make the decision on whether to grant or refuse development consent.
- Post decision - once a decision has been issued by the Secretary of State, there is a six week period in which the decision may be challenged in the High Court via Judicial Review.
- There is a clear programme and process from initiation to decision and includes a checklist for validation of applications and routemap - a gate-check process.
- The timescales associated with meeting milestones for each stage are challenging and resource intensive / procedural and do not seem to allow much flexibility to respond to changing conditions/new information etc.
- The validation and gate-check process ensures documentation is complete before the application is considered further which streamlines the determination process in accordance with agreed timescales.
- Early engagement established potential issues and allows them to be addressed prior to formal application where possible to reduce programme risk.
- Importance for early pre-scoping dialogue between developers, ECU and statutory consultees to ensure only likely suitable sites are brought forward through the formal Section 36 process or PINS process - fully considering natural heritage / landscape and visual impacts etc and alignment with local spatial frameworks where these have been produced by local authorities which seek to focus development in less sensitive areas.
- Promoting high quality environmental supporting documentation ensures any public inquiry is focussed on key issues of concern.
OTHER AQUACULTURE CONSENTING REGIMES
In Norway the regulation of aquaculture is predominately achieved through the Aquaculture Act (2005), which establishes a licensing system that covers environmental standards, land utilisation, registration, transfer and mortgaging of licences, as well as control and enforcement. The express purposes of the Aquaculture Act are to "promote the profitability and competitiveness of the aquaculture industry within the framework of sustainable development and contribute to the creation of value on the coast". This indicates the desire to create a permanent industry activity which is supported by the legal status of Norwegian aquaculture sites.
Benefits and challenges
The Aquaculture Act establishes a licensing system for aquaculture, and allows the Ministry to limit the number of licences allocated for aquaculture of salmon, trout and rainbow trout . Accordingly, the Ministry may prescribe:
- The number of licences to be allocated.
- Geographic distribution of licenses.
- Prioritisation criteria.
- Selection of qualified applications in accordance with the prioritisation criteria, including the drawing of lots etc.
- Licence fees
Following the introduction of the Aquaculture Act, a 'single-window' system was established for the processing of aquaculture licence applications, whereby the aquaculture operator submits their application to the appropriate regional office of the Directorate of Fisheries, who will forward the application to the relevant authorities to obtain all the required licences (Figure 0.1). These authorities are: The Food Safety Authority, the County Governor, the National Coastal Administration and the Water Resources and Energy Directorate. The Act prescribes that the different authorities administrating the different Acts, as well as the municipality, are obligated to undertake an efficient and coordinated processing of applications.
For fresh water aquaculture in Norway's inland counties, where regional Fisheries Directorate offices are not present, the County Governor adopts the same coordinating role for aquaculture applications.
This single-window enables a coordinated process, so that consents/licences are granted at the same time or in an appropriate sequence. The overall purpose of the scheme is to facilitate and simplify the process for applicants, by enabling applicants to deal with one public agency, and to make the processing of the applications more efficient and more expedient.
The introduction of Norway's 'single-window' approach is considered to have reduced the average licencing time by half, from 1 year to 6 months; this is in comparison to aquaculture authorisation procedures in other EU Member States lasting on average 2-3 years (Figure 0.2, EC, 2013). However, it should be noted that applicants in Norway will have undertaken the majority of pre-application, assessment and surveys prior to submitting their application, so these elements are not included within the 6 month period, so it is not directly comparable to the Scottish consenting period.
Another benefit established in the Aquaculture Act is the legal right to transfer and mortgage aquaculture licences between companies or geographically. This mortgage right allows a licence to be used as collateral for a creditor's security interest, contributing to greater predictability and improved access to capital for the industry. The mortgage will be afforded legal protection when it has been registered on the licence's record in the aquaculture register.
The aquaculture license permits the production of specific species in limited geographic areas (sites), subject to the prescribed terms. The Ministry may prescribe detailed provisions regarding the content of the aquaculture licences, including the scope, time limitations, etc. by administrative decision or regulations.
Under the Act, the Ministry may amend or revoke aquaculture licences, including for sea ranching:
- If this is necessary due to environmental considerations;
- If there are changes in any material assumptions underlying the licence;
- In the event of gross or repeated contravention of the provisions prescribed in or pursuant to this Act;
- If the licence is not used, or only used to a limited extent; and
- If one or more of the licences required has lapsed.
An applicant for an aquaculture licence is required to obtain a permit to discharge wastewater in order to obtain a licence under the Aquaculture Act (2005). The applicant does not have to send a separate emission application, as the application will be forwarded by the Directorate of Fisheries.
The Licensing Regulations (2004) establish a maximum breeding biomass for each licence.
- The Aquaculture Act (2005) has supported streamlining of Norway's consenting process, with demonstrable reductions in the time taken to achieve licences.
- The 'single-window' approach provides a clear and single point of contact for the aquaculture industry.
Figure 0.1: Organisation of aquaculture licence applications in Norway
Figure 0.2: Licencing time (months) for new aquaculture farms in some Member States and Norway (adapted from EC, 2013)
Elsewhere in Europe
A recent project by the Centre for Environment, Fisheries and Aquaculture Science (Cefas) undertook an extensive review of aquaculture environmental regulations across EU Member States (Jeffery et al., 2014). The following sections give a summary of these findings including good practice and key recommendations that are relevant to the aquaculture consenting process. The Cefas review included a number of Scottish examples of good practice, and these have been mentioned below with links to the relevant section of this report where further details are provided.
Benefits and challenges
Strategic Guidelines for the Sustainable Development of EU aquaculture (EC, 2013) highlight four priority areas: i) simplification of administrative procedures, ii) co-ordinated spatial planning, iii) competitiveness and, iv) a level playing field.
Specific examples of good practice from regulators across EU Member States identified by the Cefas report (Jeffery et al., 2014) include:
- One-stop-shops and streamlining of licensing processes: whereby applicants submit a single application to one authority which then passes it onto other relevant authorities for consideration and co-ordinates the response. Norway is provided as an example of successfully implementing this type of structure (see section 0). However it is also highlighted that other countries, such as Denmark, have successfully streamlined processes without a one-stop-shop. This has been achieved through ensuring the process for marine licensing is clear and transparent, with an aim of granting a licence within 9-12 months after application.
- Development of strategies for aquaculture: examples include the Aquaculture Development Strategy for Hungary, the renewed Strategic Framework for Scottish Aquaculture (A Fresh Start, see section 3.1), and Greece for spatial planning in the marine environment.
- Cooperation, dialogue and sharing of understanding between relevant authorities, fish farmers and other stakeholders: The Co-ordinated Local Aquaculture Management System (CLAMS) approach in Ireland and 'Scotland's Aquaculture' website? (see section 3.2.1) are cited as good examples.
- Spatial planning for aquaculture: with the aim of reducing conflicts; encouraging investment by instilling predictability and transparency; and increasing coordination between administrations/authorities. For example Allocated Zones for Aquaculture are implemented in Greece informed by research and modelling and monitoring of environmental quality standards.
- Computer-based modelling for assessing carrying capacity: the internet based Ecosystem Approach for Sustainable Aquaculture (ECASA) project toolbox includes a range of indicators, models and procedures, tailored for different farming techniques and species (see here). In addition, the Horizon 2020 funding will provide further research into any cumulative effects of aquaculture. SEPA CAR modelling is also highlighted as a good example (see section 4.2.2).
- Risk- and evidence-based approach to determining monitoring requirements: ensuring that standardised monitoring requirements are not implemented across all sites and that requirements are specific to individual sites.
- Appropriate use of the Precautionary Principle: sensible and pragmatic application of the precautionary principle in line with EU guidance and consistently applied to all types of activities.
Key recommendations from the Cefas report with respect to environmental regulations of aquaculture include:
- Need to provide clear systems and guidelines and an efficient licensing process that delivers decisions within a set time frame.
- Having a single point of contact for the aquaculture industry in the regulatory system to improve the efficiency of regulation i.e. a "one-stop-shop".
- To provide a permitting system that is flexible enough to include mitigation practices or new techniques for the management of environmental impacts.
- The Precautionary Principle be applied to aquaculture consistent with EU guidance (EC 2000; EEA 2001).
It is also worth noting that the best practice examples highlight several aspects of Scotland's regulatory regime, which should not be forgotten when attempting to streamline processes.
The Tasmanian aquaculture industry is an interesting example to explore as it has shown significant expansion, by around 320% in gross value terms over a ten-year period (from 2001/2 to 2011/2), is predominately related to salmon (>90% gross value) and covers more than 10,000 leasable hectares.
Tasmania has legislation specifically relating to aquaculture, the Marine Farming Planning Act 1995, which covers establishing aquaculture zones and allocating leases. Licensing of aquaculture activities is done under relevant fisheries legislation for either marine or inland aquaculture. Marine aquaculture must occur in a specified aquaculture zone. The approvals required are:
- A marine farming licence (under the Living Marine Resources Management Act 1995)
- A marine farming lease for an area designated in a marine farming development plan (under the Marine Farming Planning Act 1995).
There have been 14 Marine Farm Development Plans developed under the Marine Farming Planning Act 1995, which identify specific sites for aquaculture.
Benefits and challenges
Generally Development Plans are prepared by the Department of Primary Industries, Parks, Water and Environment (DPIPWE), and then sites defined by the plan are leased to proponents. The onus has therefore been on the regulating authority to define site sizes and locations, and undertake Environmental Impact Statements (EISs) at a zone level. Where the DPIPWE is the planning authority, the process for allocating leases within an aquaculture zone is set out in the Marine Farming Planning Act 1995. In practice, leases have generally been allocated using some form of public application process. Applications are assessed by a Board/Panel, which then makes recommendations to the Minister.
The Marine Farming Planning Act 1995 also allows for circumstances where the marine farming zone is designated under a privately prepared draft plan or as a result of a privately requested amendment to a marine farming development plan. This has recently led to industry undertaking EIAs and amendments to plans with a view of securing sites directly.
Marine Farm Development Plans specify various Management Controls, which typically include: nitrogen outputs, carrying capacity, disease controls, visual controls, monitoring requirements etc.
- Development at a spatial zone level, including zonal Environmental Impact Statements, has allowed a relatively rapid expansion of Tasmania's aquaculture industry.
- The onus of site selection and EIS being carried by the relevant authority reduces burden on the industry, but removes a degree of flexibility which has resulted in industry privately carrying out plan amendments and EISs with a view to securing new sites directly.