Aquaculture and Fisheries (Scotland) Act 2013

Control

16 Control agreements

(1) This section applies where the Scottish Ministers are satisfied that a commercially damaging species is present on a fish farm or shellfish farm.

(2) The Scottish Ministers must form a preliminary view as to whether and, if so, what measures should be taken to—

(a) remove the species from,

(b) reduce the incidence of the species on,

(c) prevent the spread of the species beyond, or

(d) otherwise control the species on,

the fish farm or shellfish farm.

(3) Where the Scottish Ministers form a preliminary view under subsection (2) that measures should be taken, they must—

(a) serve notice on the person who carries on a business of fish farming or shellfish farming at the fish farm or shellfish farm of the preliminary view, and

(b) consult the person in order to secure agreement—

(i) that measures require to be taken,

(ii) as to what measures require to be taken, and within what time limit,

(iii) as to who is to take such measures, and

(iv) as to such other matters as appear to the Scottish Ministers to be necessary for the purposes of such an agreement.

(4) Where agreement is reached on the matters mentioned in subsection (3)(b), the Scottish Ministers must prepare an agreement (a “control agreement”) specifying—

(a) the parties to it,

(b) the measures which are to be taken in relation to the commercially damaging species,

(c) which of those measures are to be taken—

(i) by the person who for the time being carries on a business of fish farming or shellfish farming at the fish farm or shellfish farm, and

(ii) by the Scottish Ministers, and

(d) the time limits within which any measures specified under paragraph (c) are to be taken.

(5) A control agreement may specify different measures to be taken in respect of different fish farms or shellfish farms.

(6) The Scottish Ministers must send a copy of the control agreement to the person who for the time being carries on a business of fish farming or shellfish farming at the fish farm or shellfish farm.

(7) The person who for the time being carries on a business of fish farming or shellfish farming at the fish farm or shellfish farm must take such measures as the agreement may require of that person in accordance with its provisions.

(8) The Scottish Ministers must, at least once in every 18 month period, review a control agreement for the purpose of assessing compliance with its provisions.

17 Control schemes

(1) Subsection (2) applies where the Scottish Ministers have served a notice under section 16(3)(a) in relation to a commercially damaging species that is present on a fish farm or shellfish farm, and—

(a) either—

(i) the Scottish Ministers are satisfied that it is not possible to secure a control agreement or that a control agreement is not being carried out, or

(ii) 6 weeks have elapsed since the Scottish Ministers served the notice and no agreement has been reached on the matters mentioned in section 16(3)(b), and

(b) the Scottish Ministers continue to have the view that measures should be taken to—

(i) remove the species from,

(ii) reduce the incidence of the species on,

(iii) prevent the spread of the species beyond, or

(iv) otherwise control the species on,

the fish farm or shellfish farm.

(2) The Scottish Ministers must make a scheme (a “control scheme”) for the purpose of ensuring that any measures mentioned in subsection (1)(b) which they consider should be taken are taken.

(3) The Scottish Ministers must notify the person who carries on a business of fish farming or shellfish farming at the fish farm or shellfish farm to which the control scheme relates at least 14 days before the scheme comes into effect that the scheme has been made.

(4) A control scheme must—

(a) specify the date on which it is to come into effect (which date must be not less than 14 days after the day on which it was made),

(b) identify the fish farm or shellfish farm to which it relates,

(c) specify the measures that are to be taken in relation to the commercially damaging species or otherwise,

(d) specify which of those measures are to be taken—

(i) by the person who for the time being carries on a business of fish farming or shellfish farming at the fish farm or shellfish farm, and

(ii) by the Scottish Ministers, and

(e) prescribe time limits within which any measures specified under paragraph (d) are to be taken.

(5) A control scheme may—

(a) specify different measures to be taken—

(i) by different persons such as are mentioned in subsection (4)(d),

(ii) in respect of different fish farms or shellfish farms,

(b) provide for the extension of any time limit prescribed in the scheme,

(c) include incidental, supplemental, consequential, transitional, transitory or saving provision.

(6) Schedule 1, which makes provision about the making, variation and revocation of control schemes, and appeals against such matters, has effect.

(7) The person who for the time being carries on a business of fish farming or shellfish farming at a fish farm or shellfish farm to which a control scheme relates must take such measures as the scheme may require of that person in accordance with its provisions.

(8) The Scottish Ministers must, at least once in every 12 month period, review a control scheme for the purpose of assessing compliance with its provisions.

(9) Where the Scottish Ministers are of the opinion that a person has failed to comply with subsection (7), they may carry out the requirement if they are satisfied that it is still necessary to do so.

18 Emergency action notices

(1) This section applies where the Scottish Ministers are satisfied—

(a) that a commercially damaging species is present on a fish farm or shellfish farm, and

(b) that unless urgent action is taken, the commercially damaging species will spread quickly to other areas and have an immediate and significant adverse impact on—

(i) other fish or shellfish or the ability of persons to commercially exploit them, or

(ii) the economic or commercial interests of a person who carries on a business of fish farming or shellfish farming.

(2) No notice under subsection (3) of section 16 need be served on a person mentioned in paragraph (a) of that subsection, and no consultation to secure an agreement with such a person need be carried out under paragraph (b) of that subsection.

(3) But the Scottish Ministers must serve on such a person notice (an “emergency action notice”) of their intention to take urgent action in respect of the commercially damaging species.

(4) An emergency action notice must state—

(a) the type of commercially damaging species that is present on the fish farm or shellfish farm,

(b) the nature of the threat that it poses and the impact mentioned in subsection (1)(b) that it will have,

(c) the measures that the Scottish Ministers propose to take for the purpose of—

(i) removing the species from,

(ii) reducing the incidence of the species on,

(iii) preventing the spread of the species beyond, or

(iv) otherwise controlling the species on,

the fish farm or shellfish farm, and

(d) the places where, the times at which and the methods by which the Scottish Ministers intend to carry out such measures.

(5) No earlier than 14 days after the day on which an emergency action notice has been served, the Scottish Ministers may take—

(a) such measures as are specified in the notice,

(b) such steps towards taking such measures as the Scottish Ministers think fit.

19 Appeals in connection with emergency action notices

(1) Any person who carries on a business of fish farming or shellfish farming at a fish farm or shellfish farm to which an emergency action notice under section 18 relates may appeal by way of summary application to a sheriff against—

(a) the decision of the Scottish Ministers to serve the notice,

(b) the terms of such a notice.

(2) An appeal under subsection (1) must be made within the period of 14 days beginning with the day on which the emergency action notice is served.

(3) In an appeal under subsection (1)—

(a) the sheriff may make such order as the sheriff thinks appropriate, and

(b) the sheriff’s decision is final.