Marine Planning Zones extension proposals: consultation analysis

Issues raised and Scottish Government response

Proposal to extend marine planning zones out to 12 nautical miles

Of the 53 respondents, 40 agreed with proposals to extend marine planning zones. This included 23 out of 29 organisations and 17 out of 24 individuals. A number of respondents who agreed with the proposals commented that they would close a regulatory gap, ensure developments were appropriately assessed under existing regulations and allow farms to be located further from the shore in line with developments in aquaculture equipment technology.

However a number of issues were raised both by respondents who disagreed with the proposals and those who agreed. The points raised were wide ranging, but some key themes emerged which are detailed below.

Regulator capacity

A number of respondents included comments that suggested the capacity and resource available to local authorities, consultees and other regulators may not be sufficient to be able to deal with an increase in applications, which may be more complex, arising from proposed developments between 3 -12 nautical miles. It was also noted that planning fees may need to increase to enable cost recovery in relation to proposed aquaculture sites between 3 -12 nautical miles. All local authorities that responded to the consultation agreed with the proposal.

In September 2024 we confirmed the next steps for implementing the majority of proposals from our Investing in planning - resourcing Scotland's planning system: consultation - gov.scot (www.gov.scot), including the introduction of an annual inflation linked increase to planning fees.

The view of Scottish Ministers is that in the short to medium term it is anticipated that a small number of proposals for development between 3 – 12 nautical miles are likely to come forward, with those developments being located within local authority areas in which aquaculture farms already operate. As such it is not anticipated that there would be a significant increased burden on aquaculture regulators.

The extension of marine planning zones is not considered to have a significant impact on planning authority costs. An applicant is required to submit a fee on submission of a planning application to the relevant planning authority. The Town and Country Planning (Fees for Applications) Scotland Regulations 2022 as amended sets out how the fee should be calculated. The purpose of the planning application fee is cover the cost of the determination of planning applications by the planning authority. 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.

Assessment of proposed developments beyond 3 nautical miles

A number of respondents commented that proposed developments would need to be suitably assessed, particularly in relation to impacts on the environment, wildlife, communities and other marine users. Some respondents commented that the underlying regulations were not sufficient to appropriately assess the impact of aquaculture developments.

Scottish Ministers consider that aquaculture is strictly regulated to ensure that the environment upon which the aquaculture sector and others rely is protected for future generations.

In regards to planning, proposed developments between 3 - 12 nautical miles would undergo the same rigorous assessments as for farms located between 0 – 3 nautical miles. Planners must consider applications in relation to policies set out in National Planning Framework 4, together with relevant Local Development Plans, Regional Marine Plans and the National Marine Plan. Statutory Consultees to the planning process will continue to provide expert advice and applications will be open to representations from non-statutory consultees and the wider public, which must be considered by planners. Applications for fish and shellfish farms between 3 – 12 nautical miles will also be subject to Environmental Impact Assessment and Habitats Regulations Assessment where a development falls within the scope of those regulations.

As well as requiring planning permission fish and shellfish farms must be authorised as an aquaculture production business and have a marine licence for deposit of equipment (unless the development meets the terms of exemption). Fish farms must also be licenced to discharge waste into the water environment. When all relevant consents are in place developers may seek a sea bed lease from Crown Estate Scotland. Only once a lease is in place will a farm be permitted to operate.

Alignment with other aquaculture consenting processes

A number of respondents commented that other aquaculture consenting processes should be in place for the 3 -12 nautical mile area. Specific reference was made by some respondents to the extent of SEPA’s powers under The Water Environment (Controlled Activities) (Scotland) Regulations 2011 only extending out to 3 nautical miles.

Powers related to Scottish Ministers ability to authorise aquaculture production businesses and grant marine licences cover the 3 – 12 nautical mile zone.

Work is underway to consider how best to implement assessment and regulation of fish farm discharges between 3 - 12 nautical miles while maintaining the high standards associated with fish farm regulations in the 0 – 3 nautical mile zone. As noted above farms will not be permitted to operate without all relevant consents in place, including consent for fish farms to discharge waste into the water environment

Impact on fisheries sector

A number of fisheries groups commented that the proposals would result in further spatial conflict between commercial fishing and aquaculture, while other fisheries groups noted that the proposals would allow developments to be appropriately assessed including in relation to impact on fisheries.

However, the view of Scottish ministers is that the extension of planning authorities boundaries out to 12 nautical miles will ensure fisheries interests can engage with the planning process for proposed fish and shellfish farm developments between 3 -12 nautical miles. Through the work of the Consenting Task Group pre-application pilots, opportunities for early engagement between developers, fisheries groups and other local interests are being enhanced. Representations will be able to be submitted during the formal application stage as is the case for proposed developments in the 0 - 3 nautical mile zone.

Alternatives for consenting aquaculture between 3 – 12 nautical miles

A number of respondents suggested alternatives for how aquaculture consenting could be managed. This included exploring the removal of planning requirements between 3-12 nautical miles, maintaining planning requirements but having decisions made by Scottish Government, and managing the consenting process through larger regional marine planning partnerships based on connectivity of waters, rather than local authority marine planning zones.

Scottish Ministers view is that the extension of marine planning zones and maintaining the role of local authorities is the most effective solution to closing the existing regulatory gap within the context of the existing regulatory framework, and in line with the Verity House Agreement whilst ensuring a consenting system that will maintain high regulatory standards.

Scottish Ministers do not rule out considering alternative options further in the future.

Proposed boundaries for extended marine planning zones

Coordinates from the extended marine planning zone boundaries will be used to define each marine planning zone in the amended legislation.

A number of respondents noted potential inaccuracies which the proposed boundaries for marine planning zones:

One respondent stated that the designation of Argyll Southwest of the Mull of Kintyre appears not to follow the median line suggesting prospective overlap with potential extension of the jurisdiction of Antrim to the median line where this distance is less than 12 nautical miles.

Having reviewed this point it is considered that the Argyll and Bute marine planning zone boundary is correct. The outer boundaries for the marine planning zones aligns with the Scottish Adjacent Waters Boundaries, which defines the co-ordinates of the boundaries on the east coast (between Scotland and England near Berwick) and the west coast (between Scotland and England in the Solway firth and Scotland and Northern Ireland in the North Channel). Marine Planning Zones for Dumfries and Galloway and Argyll and Bute extend out to the limits of the Scottish Adjacent Waters Boundaries and so do not extend out to 12 nautical miles but to the boundary line for Northern Ireland waters. It is noted that this should have been made more clear in the consultation paper.

Orkney Islands Council stated the marine planning zone for the Orkney Islands should be the same as the boundaries for the Orkney Islands Scottish Marine Region. It was noted that there may be a minor mismatch in the Pentland Firth between the boundary of the proposed extended marine planning zones and the Orkney Islands Scottish Marine Region.

It is noted that there is variation between the marine planning zone for Orkney Islands Council and the Scottish Marine Region for Orkney. This is also the case for a number of other extended marine planning zones across Scotland and is the case for many of the existing marine planning zone boundaries (0-3 nautical miles).

This is due to the differences between marine planning zones and Scottish marine regions, with the 23 marine planning zones based on the jurisdiction of an individual local authority and the 11 Scottish marine regions based on the physical characteristics of the Scottish marine area. Scottish marine regions set out the boundaries for regional marine plans under the Marine Scotland (Act) 2010, whereas marine planning zones define boundaries specifically for local authorities responsibilities for planning controls of marine fish and shellfish farms under the Town and Country Planning (Scotland) Act 1997.

The proposed extensions to marine planning zones involved the extension of the existing boundaries out to 12 nautical miles (except where boundaries met another marine planning zone or Scottish Adjacent Waters Boundaries) while maintaining the existing delineations between local authorities. This means there would be no loss of existing area for each local authority which would be the case if seeking to align exactly with Scottish Marine Region boundaries.

Following further discussions, Orkney Islands Council set out there preference for alignment between the Marine Planning Zone and Scottish Marine Region but noted it would not be considered a ‘showstopper’ if the two zones did not align.

Crown Estate Scotland noted that there may be discrepancies in the placement of the boundaries in Clackmannanshire and North Rona. Further information on the potential discrepancies was subsequently provided by Crown Estate Scotland.

Discussions between Marine Directorate and Crown Estate Scotland confirmed that no amendments to marine planning zones for Clackmannanshire and around North Rona were required.

Impact Assessments

The Scottish Government is required to consider the impacts of proposed policies, plans or strategic decisions in relation to equalities, various societal groups and sectors, data protection and the environment, under a range of legislation and commitments.

Impact assessment and impact assessment screening documents were published alongside the consultation paper.

A number of respondents provided comments in relation to these impact assessments.

These included a range of views in relation to the partial Businesses and Regulatory Impact Assessment (BRIA) and the partial Island Communities Impact Assessment (ICIA). Both these impact assessments were published in a partially completed form to allow comments provided in the consultation to be incorporated into final versions of these impact assessments.

In regards to the Strategic Environmental Assessment (SEA), one respondent disagreed that a full SEA was not required. Whilst another individual noted that although the SEA is included it “focuses on ensuring compliance with existing environmental laws rather than introducing new protective measures.

Having consulted with NatureScot, Scottish Environment Protection Agency and Historic Environment Scotland, as required by the Environmental Assessment (Scotland) Act 2005, Scottish Ministers determined that a full SEA was not required.

Crown Estate Scotland commented that a Habitats Regulations Assessment (HRA) is a statutory requirement under the Habitat Regulations to protect European designated sites and should be included in the list of assessments/ screening to be undertaken.

A HRA was not considered to be required as the proposal to extend marine planning zones does not constitute a ‘plan or project’. HRAs are undertaken by Local Authorities when developing Local Development Plans and are also required for proposed developments (projects) that are likely to have an adverse effect on a protected 'European Site'. The requirement for an HRA to be undertaken was considered as part of the Strategic Environment Assessment screening that was carried out when developing the policy.

A number of respondents commented that impact assessments should be carried out for proposed developments between 3 – 12 nautical miles in relation to impacts on the wider environment and wildlife.

Such impacts would be considered as part of Environmental Impact Assessments which are required to be carried out for proposed marine fish farms that fall within the scope of The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, as is the case for proposed farms located between 0-3 nautical miles.