Section 2: Consenting
This section discusses the current consenting arrangements for the development of seaweed cultivation sites and options for consenting licensing in the future.
The Aquaculture and Fisheries Bill consultation 2012 asked a number of questions relating to the regulation of seaweed farming. The majority of responses expressed strong support for a consistent regulatory regime, although there was no consensus on the appropriate regulatory approach. Consequently no changes took place through the Bill to allow further discussions on the relevant interests.
Having held further discussions with all interested parties, we realise that the existing regulatory regime contains some anomalies. However, as this is also true of all of the options proposed below, we seek views as to which option, or options, would be considered the best fit for the regulation of this activity.
Current regulatory regime
Seaweed farms are currently consented under the Marine (Scotland) Act 2010, with a Works Licence also required in Shetland and Orkney. All other types of aquaculture are considered to be development under the Town and Country Planning Act 1997 ('the 1997 Act'). It should be noted that as well as planning permission (and the subsequent consent), finfish and shellfish farms also need to obtain a Marine Licence, for navigational aspects of the development, and wellboat operations.
Where a site is an IMTA development, the consent to develop (or place or deposit equipment in the water) is therefore currently dealt with under 2 different regimes with no consideration of the development as a whole (except through Environmental Impact Assessment), where relevant.
The difference in regulatory regimes also leads to a situation where there may currently be farms using the same or similar equipment ( i.e. mussel farms and seaweed farms) in the same water body, but consented by different regulatory regimes because they farm different species.
We recognise that this is potentially confusing for industry and the public, particularly in relation to IMTA applications. The four main options are outlined below; with the potential benefit and drawbacks of each option considered.
1) No change
As outlined above, maintaining the status quo would entail seaweed cultivation being consented by Marine Scotland through the marine licensing regime, with other aquaculture development (encompassing fish or shellfish, including sea urchin, crustacean or mollusc) continuing to be regulated under the 1997 Act by the Planning Authority.
The main concern with this option is that this situation may be confusing and time consuming for developers, as well as complicated for members of the public that may wish to comment on an application.
No change also means that IMTA applications will not be considered holistically, but there may possibly be opportunities to simplify the consenting process. An example of this would be the provision of a flow diagram of the process or agreement on the administrative order to progress an application, and the sharing of information submitted through one regulatory regime.
2) Provide main consent through terrestrial planning regime
Responses made to questions about seaweed cultivation and regulation in the Aquaculture and Fisheries Bill consultation 2012 by industry, local authorities and regulators indicated a strong preference for all seaweed cultivation to be regulated by the Town and Country Planning Act 1997 (given that is how other aquaculture developments are regulated). Under this option we have assumed that this will apply to all applications to cultivate seaweed, regardless of scale, type, location etc.
The main concern relating to this amendment is that there would be a move away from all marine developments (except those defined as fish farming under the 1997 Act) being considered by the Marine Licensing regime. The Scottish Government considers that potential significant environmental impacts are best considered and regulated by Marine Scotland.
3) Use both planning and marine licensing regimes but differentiate by scale
Under this option, both regulatory regimes will continue to be used but criteria would be developed to differentiate between shellfish scale (0-40 x 200m lines), medium scale (41 -80 x 200m lines), and extensive scale (80+ x 200m lines)
This option would see shellfish scale seaweed cultivation consented by Planning Authorities through the 1997 Act and medium scale consented under the Marine Licensing regime. This would allow farms with significant environmental impacts to continue to be regulated by Marine Scotland.
As there is no policy proposed for extensive scale (and the regulatory regime is differentiated by scale), we will not discuss the regulatory proposal here, but the status quo would be marine licensing. The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 (as amended) could be used to specify certain types of seaweed cultivation as an activity that does not need a marine licence. Farms below the chosen threshold would be considered as development under the 1997 Act, with a legislative change being made to accommodate this.
We considered a number of criteria that could be used, including the expected tonnage produced per annum, and the size of farm area. However, given that the draft SPS has already differentiated between shellfish scale cultivation (1-40 x 200m lines, medium scale (41-80 x 200m lines, and extensive scale (80+ x 200m lines), this appeared a sensible criterion to also use for the regulatory regime. It also has fewer inherent complications, as there is difficulty in verifying tonnage before the development is active. However, we are aware that setting such arbitrary thresholds may cause difficulty if developers wish to modify their site and extend over the approved limit.
The main challenge relating to this option is the determination of criteria and thresholds to ensure they are rational, evidenced based and are not considered arbitrary. It is also possible that this system would still be confusing for developers and the public, depending on how the industry grows and develops. However, it would provide for more extensive sites which are likely to have more significant environmental impacts to be assessed and regulated by Marine Scotland's appropriate.
4) Transfer seaweed to planning only if it is part of IMTA development
A final option is to provide that seaweed cultivation is regulated under the 1997 Act only if cultivated as part of an IMTA system. This could be achieved by an amendment to the 1997 Act as well as marine licensing legislation.
There are two main benefits to this option: IMTA applications will be considered holistically and the process is simplified for developers of IMTA sites. There are some disadvantages as it may be difficult to ascertain when seaweed cultivation is part of an IMTA development, i.e. if there should there be a maximum distance between elements of the proposal.