The Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007

Citation, commencement and extent

1.—(1) This Order may be cited as the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 and shall, subject to paragraph (2), come into force on 1st April 2007.

(2) Article 13 shall come into force on 2nd April 2007.

(3) This Order extends to Scotland only.

Interpretation

2.  In this Order, unless the context otherwise requires–

“the 1997 Act” means the Town and Country Planning (Scotland) Act 1997;

“the 2000 Act” means the National Parks (Scotland) Act 2000(1);

“deposited data” means the data recorded on the CD Rom–

(a)

entitled “the Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007”; and

(b)

deposited with the Scottish Ministers at their offices at Victoria Quay, Edinburgh EH6 6QQ on 9th February 2007;

“fish farm development” means the placing or assembly of any equipment in marine waters for the purposes of fish farming (“equipment” and “fish farming” having the same meaning as in section 26(6) of the 1997 Act) and any material change of use of equipment so placed or assembled;

“marine planning zone” has the meaning given in article 5(3);

“marine waters” means the waters described in paragraphs (b) or (c) of subsection (6) of section 26 of the 1997 Act.

Application of 1997 Act and subordinate legislation

3.—(1) Part 2 of the 1997 Act shall apply to marine waters only for the purposes of the preparation of the development plan for an area in connection with fish farm development.

(2) The following provisions of the 1997 Act shall not apply in connection with fish farm development–

(a) section 59;

(b) Part 5;

(c) section 159; and

(d) Part 8.

(3) For the purposes of the application of the 1997 Act, and any enactment made or to be treated as having been made thereunder in connection with fish farm development, unless otherwise provided or unless the context otherwise requires, a reference in any enactment, instrument or document–

(a) to the district or the area of a planning authority shall include the marine planning zone in respect of which that authority is the planning authority by virtue of article 5(1) and shall, when functions under the 1997 Act are exercisable by a National Park authority, include the National Park for which that authority is the National Park authority and also the marine planning zone in respect of which that authority has functions by virtue of article 5(2);

(b) to a planning authority shall when functions are exercisable by a National Parks authority, be read as including a reference to that National Parks authority; and

(c) to “land” shall, other than in section 26(1), (6) and (6AA) of the 1997 Act, be treated as including marine waters and the sea-bed beneath such waters.

(4) Any offence under the 1997 Act committed in respect of fish farm development in marine waters beyond the ordinary jurisdiction of any sheriff shall be held to have been committed within the sheriffdom nearest to such waters and may be tried and punished accordingly.

National Park Plans

4.—(1) For the purposes of the preparation of a National Park Plan (within the meaning of section 11 of the 2000 Act) in connection with the exercise by a National Park authority of any functions which it has by virtue of article 5(2)–

(a) references in sections 11 and 12 of the 2000 Act and in sub paragraph (b)(i) below to the National Park itself are to be construed as including a reference to the marine planning zone in respect of which that authority has such functions; and

(b) in section 12 of the 2000 Act–

(i) references to a local authority shall include a reference to a local authority which is the planning authority by virtue of article 5(1) for a marine planning zone which adjoins the National Park; and

(ii) the reference in subsection (1)(d)(ii) to a community council shall include any community council whose area adjoins the marine planning zone in respect of which the authority has planning functions by virtue of article 5(2).

(2) The National Park authority must in exercising any functions which it has by virtue of article 5(2) have regard to the National Park Plan.

Designation of planning authority boundaries

5.—(1) The planning authority specified in column 1 of Part 1 of the Schedule to this Order is to be the planning authority for the purposes of the application of the 1997 Act to fish farm development in the marine planning zone specified in the entry in column 2 of Part 1 of the Schedule corresponding to that planning authority.

(2) The National Park authority specified in column 1 of Part 2 of the Schedule to this Order is to have the functions under the enactments specified in column 3 of Part 2 of the Schedule for the purposes of the application of the 1997 Act to fish farm development in the marine planning zone specified in the entry in column 2 of Part 2 of the Schedule corresponding to that National Park authority.

(3) A marine planning zone is a part of the marine waters described and identified by number by the deposited data.

Amendment of the Orkney County Council Act 1974

6.—(1) The Orkney County Council Act 1974(2) is amended as follows.

(2) In section 3(1) (interpretation)–

(a) after the definition of “enactment” insert–

““fish farm development” means the placing or assembly of any equipment in marine waters for the purposes of fish farming (“equipment” and “fish farming” having the same meaning as in section 26(6) of the Town and Country Planning (Scotland) Act 1997);”; and

(b) after the definition of “licensee” insert–

““marine waters” means the waters described in paragraphs (b) or (c) of subsection (6) of section 26 of the Town and Country Planning (Scotland) Act 1997;”.

(3) In section 11 (licensing of works), after subsection (1) insert–

“(1A) A works licence shall not be granted for fish farm development.”.

(4) In section 14(1) (restriction of works) after the words “such works” insert, “, to works comprising fish farm development”.

Amendment of the Zetland County Council Act 1974

7.—(1) The Zetland County Council Act 1974(3) is amended as follows.

(2) In section 3(1) (interpretation)–

(a) after the definition of “enactment” insert–

““fish farm development” means the placing or assembly of any equipment in marine waters for the purposes of fish farming, (“equipment” and “fish farming” having the same meaning as in section 26(6) of the Town and Country Planning (Scotland) Act 1997);”; and

(b) after the definition of “licensee” insert–

““marine waters” means the waters described in paragraphs (b) or (c) of subsection (6) of section 26 of the Town and Country Planning (Scotland) Act 1997;”.

(3) In section 11 (licensing of works), after subsection (1) insert–

“(1A) A works licence shall not be granted for fish farm development.”.

(4) In section 14(1) (restriction of works) after the words “such works” insert, “, to works comprising fish farm development”.

Amendment of the 1997 Act

8.—(1) The 1997 Act is amended as follows.

(2) In section 26(6) (meaning of development) in the definition of “fish farming” after “kind of” insert, “sea urchin,”.

(3) In section 27(4) (time when development began) after paragraph (d), insert–

“(da) any placing or assembly of equipment as is mentioned in subsection (6) of section 26 in waters described in paragraph (b) or (c) of that subsection,”.

(4) In section 36(1) (register of applications etc.) after paragraph (ba)(4) insert–

“(bb) the grant or refusal of planning permission by the Scottish Ministers under section 31A in respect of development in the district of that authority,”.

Amendment of the Town and Country Planning (Enforcement of Control) (No. 2) (Scotland) Regulations 1992

9.—(1) The Town and Country Planning (Enforcement of Control) (No. 2) (Scotland) Regulations 1992(5) are amended as follows.

(2) In regulation 2 (interpretation) after the definition of “electronic communication” insert–

““marine waters” means the waters described in paragraphs (b) or (c) of subsection (6) of section 26 of the Act;”.

(3) In regulation 7 (register of waste land notices, enforcement notices, breach of condition notices and stop notices) at the end of paragraph (3) after “notice relates” insert, “or, where the notice relates to marine waters, by reference to a plan”.

Amendment of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992

10.—(1) The Town and Country Planning (General Development Procedure) (Scotland) Order 1992(6) is amended as follows.

(2) In article 2(1) (interpretation)–

(a) after the definition of “the Fees Regulations” insert–

““fish farm development” means the placing or assembly of any equipment in marine waters for the purposes of fish farming (“equipment” and “fish farming” having the same meaning as in section 26(6) of the Act) and any material change of use of equipment so placed or assembled;”; and

(b) after the definition of “local advertisement” insert–

““marine waters” means the waters described in paragraphs (b) and (c) of subsection (6) of section 26 of the Act;”.

(3) In article 15(1) (consultations before grant of planning permission)–

(a) in paragraph (j), after paragraph (vii) insert–

“(viii) fish farm development;”; and

(b) after paragraph (p) insert–

“(q) the Scottish Ministers and the Secretary of State where fish farm development may affect a site designated as a controlled site under section 1 of the Protection of Military Remains Act 1986(7)”.

(4) After article 22 (decision by planning authority) insert–

“PART 3B MARINE FISH FARMING

22B.— (1) This Order shall apply to an application for planning permission relating to fish farm development subject to the following modifications.

(2) In article 3(c)–

(a) in paragraph (i) for “land” substitute “location of the development”;

(b) omit paragraph (iv).

(3) Omit articles 4 and 9.

(4) In article 12 for paragraph (5) substitute–

“(5) The planning authority shall publish a notice in the form set out in Schedule 8 in a newspaper circulating in the district of that planning authority.”.

(5) In article 15(1), in paragraph (n) for “within whose area the development is to take place” substitute, “whose area is adjacent to the marine planning zone in which the fish farm development is to take place”.

(6) Where an application for planning permission relates in part to fish farm development and in part to other development, the modifications specified in this article shall apply only for the purposes of that application to the extent that it relates to fish farm development.”.

Amendment of the Environmental Impact Assessment (Scotland) Regulations 1999

11.—(1) The Environmental Impact Assessment (Scotland) Regulations 1999(8) are amended as follows.

(2) In regulation 2(1) (interpretation)–

(a) after the definition of “exempt development”, insert–

““fish farming” means the breeding, rearing or keeping of fish, excluding shellfish;

“fish farm development” means the placing or assembly of any equipment in marine waters for the purposes of fish farming (“equipment” having the same meaning as in section 26(6) of the Act) and any material change of use of equipment so placed or assembled;” and

(b) after the definition of “the land” insert–

““marine waters” means the waters described in paragraphs (b) and (c) of subsection (6) of section 26 of the Act”.

(3) After regulation 28A (ROMP applications) insert–

“Marine fish farming

28C.—(1) These Regulations shall apply to an application for planning permission relating to fish farm development subject to the following modifications.

(2) In regulation 2(1) (interpretation)–

(a) in the definition of “the consultation bodies”–

(i) omit paragraph (e);

(ii) after paragraph (g) insert–

“(h)  any district salmon fishery board in whose area the proposed development is to be situated.”; and

(iii) after the definition of “the Directive” insert, “ “district salmon fishery board” has the meaning given in section 43 of the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003(9).

(3) In regulation 5(2)(a) for “land” substitute, “location of the development”.

(4) In regulation 10(2)(a) for “land” substitute, “location of the development”.

(5) For regulation 13 substitute–

“ Publicity for environmental statements for fish farming

13.— (1) Where the relevant planning authority or the Scottish Ministers receive an environmental statement relating to an EIA application relating to fish farm development, they shall publish as soon as possible in a local newspaper circulating in the locality in which the proposed development is to be situated and in the Edinburgh Gazette a notice stating–

(a) that copies of the environmental statement and other documents submitted with the application may, during the period of 4 weeks after first publication of the notice, be inspected in–

(i) a specified office of the relevant planning authority, being an office of the relevant authority in the locality nearest to the proposed development; and

(ii) a specified Post Office being a Post Office in the locality nearest to the proposed development;

(b) the address at which copies of the application and the environmental statement may be obtained;

(c) the cost of a copy of the environmental statement;

(d) that representations may be made to the relevant planning authority, at the office referred to in paragraph (1)(a)(i), within the period specified in paragraph (1)(a); and

(e) the nature of possible decisions.

(2) prior to the first publication of the notice referred to in paragraph (1)–

(a) make available in the office of the relevant planning authority referred to in paragraph (1)(a)(i); and

(b) send to the Post Office referred to in paragraph (1)(a)(ii),

the documents referred to in paragraph (1)(a).

(3) Where the relevant planning authority or the Scottish Ministers are required to publish a notice in accordance with paragraph (1), the applicant shall pay the cost to be incurred by the relevant authority in arranging the advertisement at the time of submission of the statement.”.

(6) In regulation 19(2) omit “subject to substitution, in paragraph (1), of “in Schedule 6” in place of “in Schedule 5””.

(7) Where an application for planning permission relates in part to fish farm development and in part to other development, the modifications specified in this regulation shall apply only for the purposes of the application to the extent that it relates to fish farm development.”.

(4) In column 2 of the Table in Schedule 2, for the entry corresponding to the entry 1(d) in column 1 (intensive fish farming), substitute–

“(a) the installation resulting from the development is designed to produce more than 10 tonnes of dead fish weight per year;

(b) where the development is situated in marine waters, the development is designed to hold a biomass of 100 tonnes or greater; or

(c) the proposed development will extend to 0.1 hectare or more of the surface area of the marine waters, including any proposed structures or excavations,”.

Amendment of the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999

12.—(1) The Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999(10) are amended as follows.

(2) In regulation 1(3) (citation, commencement and application)–

(a) in paragraph (a) omit “, other than in the waters described in sub-paragraphs (b) and (c)”; and

(b) omit paragraphs (b) and (c).

(3) In regulation 2(1) (interpretation)–

(a) in the definition of “marine waters” omit “and” appearing after paragraph (a) and after paragraph (b) insert–

“(c) waters, not being inland waters, which are landward of the baselines from which the breadth of the territorial sea adjacent to Scotland is measured; and

(d) waters which are seaward of those baselines up to a distance of 12 nautical miles;”;

(b) after the definition of “marine waters” insert–

““nautical miles” means international nautical miles of 1,852 metres;”; and

(c) in the definition of “relevant authority” omit “, Shetland Islands Council or Orkney Islands Council, as the case may be”.

Amendment of the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004

13.—(1) The Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004(11) are amended as follows.

(2) In regulation 2(1)–

(a) after the definition of “community council” insert–

““equipment” and “fish farming” have the same meanings as in section 26(6) of the 1997 Act;”; and

(b) after the definition of “dwellinghouse” insert–

““marine waters” means the waters described in paragraphs (b) and (c) of subsection (6) of section 26 of the 1997 Act;”.

(3) In the Schedule–

(a) after paragraph 10 insert–

“10A.   In relation to development within category 8A the area of the sea bed to be used in relation to the development is the area which if the anchorage or mooring points used in relation to the development were to be connected by straight lines would be enclosed by such imaginary lines.”;

(b) in the Table in column 1 (category of development) after category 8 insert “8A. The placing or assembly of equipment in any part of any marine waters for the purpose of fish farming”, and in column 2 (fee payable) corresponding to new category 8A insert, “£145 for each 0.1 hectare of the surface area of the marine waters which to be use in relation to the placement or assembly of any equipment for the purposes of fish farming and £50 for each 0.1 hectare of the sea bed to be used in relation to such development, subject to a maximum of £14,500.”; and

(c) in the Table in column 1 in category 12 at the end insert, “; or in the use of equipment placed or assembled in marine waters for the purpose of fish farming.”.

Transitional arrangements

14.—(1) Section 26(6) of the 1997 Act shall not apply to the placing or assembly of equipment in marine waters permitted by a relevant authorisation if that placing or assembly is carried out on or after 1st April 2007 and before 1st April 2010.

(2) Where section 26(6) of the 1997 Act does not apply to fish farm development by virtue of paragraph (1), sections 26(1), 26AA and 31A of the 1997 Act shall apply to the operation after 1st April 2010 of a marine fish farm involving the use of equipment the placing or assembly of which is permitted by a relevant authorisation subject to the following modifications–

(a) in section 26AA(1) for paragraph (b) substitute–

“(b) that the operation involves the use of equipment the placing or assembly of which–

(i) is carried out on or after 1st April 2007 and before 1st April 2010; and

(ii) is permitted by an authorisation granted in pursuance of an application for such authorisation made before 1st April 2007”; and

(b) in section 26AA(2)(b)(ii) for “the date of commencement of section 4 of the Planning etc. (Scotland) Act 2006” substitute “1st April 2010”.

(3) Nothing in this Order shall affect the enforceability of any authorisation granted prior to the date on which this Order comes into force.

(4) Notwithstanding article 12, the Environmental Impact Assessment (Fish Farming in Marine Waters) Regulations 1999(12) shall continue to apply in any case where an application to the Crown Estate Commissioners for consent for fish farming in marine waters is made prior to 1st April 2007.

(5) If an application for a works licence is–

(a) made before 1st April 2007; and

(b) is not deemed at that date to have been refused by virtue of either–

(i) section 11(4)(b) of the Zetland County Council Act 1974(13); or

(ii) section 11(4)(b) of the Orkney County Council Act 1974(14),

the application shall be treated as an application for planning permission rather than an application for a works licence and the 1997 Act shall apply as if the application is an application for planning permission made under Part 3 of that Act.

(6) In this article–

(a) “authorisation” has the same meaning as in section 26AA(3) of the 1997 Act;

(b) “equipment” and “fish farming” has the same meanings as in section 26(6) of the 1997 Act; and

(c) “relevant authorisation” means–

(i) an authorisation granted by the Crown Estate Commissioners pursuant to an application for such authorisation made prior to 1st April 2007; or

(ii) a works licence granted prior to 1st April 2007; and

(d) “works licence” means–

(i) a licence granted under section 11 of the Zetland County Council Act 1974 as regards fish farming within the coastal area defined in that Act; or

(ii) a licence granted under section 11 of the Orkney County Council Act 1974 as regards fish farming within a harbour area defined in that Act.

DES McNULTY

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

27th March 2007