Planning etc. (Scotland) Act 2006
1. The Planning etc. (Scotland) Act 2006 (the 2006 Act) received Royal Assent on 20 December 2006. The relevant parts of section 3 pertaining specifically to marine fish farming and the whole of section 4, were commenced on 1 April 2007 by the Planning etc. (Scotland) Act 2006 (Commencement No. 2) Order 2007.
Section 3 of the 2006 Act
2. The purpose of section 3(1) of the 2006 Act is to amend section 26 of the 1997 Act to:
- extend the definition of development to include:
fish farming to the 12 mile limit; and a material change of use of a fish farm even if no new equipment is needed; and
- provide Ministers with order making powers.
3. Section 26(6AA) of the 1997 Act provides that a material change of use of a fish farm is development even if no new equipment is needed. This section was enacted in the particular circumstance of where there may be a change of species of fish being farmed. It was recognised that there was scope for a change of species of fish not to require planning permission should there be no change in the equipment used. However, there was concern that such a change of species could lead to environmental impacts which required assessment.
4. Where developers consider that they may wish to change the cultivated species at some point in the future, it is appropriate for this matter to be considered at the initial planning application stage. However, where this is not possible or there is a change of circumstance, planning authorities will be in a position to consider whether planning permission is required.
Ministers Order making powers
5. Scottish Ministers may make orders regarding the placing or assembly of equipment for the purpose of fish farming, or any material change of use, in waters described in section 26(6)(b) or (c) of the 1997 Act. They also make provision for Ministers to allocate responsibility in the order to a particular planning authority or National Park authority. Before making such orders, Ministers must consult SEPA and every planning authority and the provision enables consultation with such other persons as Ministers think fit.
Extent of planning controls
6. The definition of "development" in section 26(6) of the 1997 Act is expanded to include fish farming within 12 nautical miles (M) from the baselines from which the territorial sea is measured. The role of relevant planning authorities is currently extended to those areas designated in the Schedule to the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 and the associated CD-Rom i.e. out to the 3M. Due to the current technical nature of the fish farming industry, it is highly unlikely that applications for planning permission between 3M and 12M will be lodged in the near future. The Executive will monitor the situation with further work envisaged during 2007-8 to extend the planning authority designated areas out to 12M.
7. Fish farming in inland waters is already subject to planning control under the 1997 Act and those provisions are retained. The effect of the provision is that fish farms coming within the definition of development will require planning permission from 1 April 2007.
Loch Lomond and the Trossachs National Park Authority
8. The Loch Lomond and the Trossachs National Park Authority will be the planning authority for fish farming purposes only for those areas designated - and for those functions listed - in Part 2 of the Schedule to the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007. A Direction is required under section 26(6F) of the 1997 Act to apply sections 26(6C) and 26(6D) to National Parks and this Direction is attached at Annex F.
Section 4 of the 2006 Act
9. The primary purpose of section 4 of the 2006 Act is to provide Scottish Ministers with the powers to determine whether existing fish farms can continue to operate. Existing fish farms are defined in section 26AA(1) of the 1997 Act.
Existing Fish Farms
10. Section 26AA (introduced by section 4(1) of the 2006 Act) provides for the circumstances in which the operation of a marine fish farm will amount to development and so require planning permission under the 1997 Act. At subsection 26AA(1)(a) these are that the marine fish farm is being operated after the "appropriate date" or if before that date, the date where planning permission is granted or refused under section 31A; and at subsection 26AA(1)(b), that the operation involves the use of equipment which was placed or assembled in waters even though when this action took place before 31 March 2007 i.e. the date on which section 24 of the 2003 Act came into force and before which the action did not constitute development under the planning Acts. The "appropriate date" for a fish farm with reference to subsection 26AA(1)(a) is whichever is the later of: 1 April 2010 being the date prescribed by Scottish Ministers under the Town and Country Planning (Prescribed Date) (Scotland) Regulations 2007 ( SSI 2007/123) and a date on which any authorisation ceases to have effect. The reference to an authorisation is to a works licence or consent from the Crown Estate Commissioners which relates to the operation of a fish farm and is in effect from 1 April 2007.
Planning permission in respect of operation of a marine fish farm
11. Section 4(2) of the 2006 Act inserts Section 31A into the 1997 Act. This section applies to planning permission for the operation of a marine fish farm which involves the use of such equipment as is referred to in section 26AA(1)(b) i.e. equipment which was placed or assembled in waters in advance of when such an action would have constituted development.
12. This will apply to existing farms which operate under a development consent from the Crown Estate or a works licences from either Shetland or Orkney Islands Council.
13. This section states that any planning permission is to be granted by the Scottish Ministers. This power is not extended to planning authorities. This section also allows Ministers to grant permission for the operation of individual fish farms or to grant planning permission by order in respect of the operation of a class of fish farms, the class in question being specified in the order.
14. When granting any such planning permission, it may be granted either unconditionally or subject to conditions or limitations. Ministers may impose conditions or limitations on the planning permission which were in effect either on the development consent or licence at the time of imposition.
15. The principal matters to be taken into account by the Scottish Ministers in coming to a decision as to whether to grant planning permission are the likely impact of the development on (a) any European site within the meaning of regulation 10 of the Conservation (Natural Habitats &, c.) Regulations 1994 and (b) the environment generally. Ministers will additionally consider relevant planning matters.
16. Ministers may by means of regulations also make provisions which:
(a) specify the cases where an application for planning permission must be made,
(b) as to the form of such an application,
(c) specify documents and information which require to accompany such an application,
(d) as to consultation in connection with such an application, and
(e) as to any other matters concerning procedure on such an application.
17. The cases where an application for planning permission must be made and manner in which such an application is to be made to Ministers are set out in the Town and Country Planning (Marine Fish Farming) (Scotland) Regulations 2007 ( SSI 2007/175)
18. Ministers have set up a non-statutory advisory panel to carry out an assessment of existing marine fish farms. All pre-1999 finfish farms will go through a review process and all post 1999 farms will be audited. This is a separate but complimentary process to that being undertaken by the planning authorities. Generally, matters relating to the Review Panel do not form part of this Circular.
19. There may be circumstances where a developer wishes to modify the fish farm in advance of any consideration by the Review Panel. In this case, the developer should apply to the planning authority for planning permission for the modification. It is not possible for planning authorities to grant planning permission for the existing farms as it is only Ministers under powers contained in section 31A of the 1997 Act who are able to do so. It will therefore be for Ministers to undertake a review/audit of the fish farm at a future date.