Control
Section 16 - Control agreements
41.Section 16 applies where the Scottish Ministers are satisfied that a commercially damaging species is present on a fish farm or shellfish farm. Section 16(2) requires that Scottish Ministers form a preliminary view as to whether measures should be taken to remove the species, to reduce the incidence of the species, to prevent its spread or to control it, and if so, by what means. For example, where a commercially damaging species is found to be present, Ministers may take a preliminary view that the site may be fallowed to control the presence of a commercially damaging species.
42.Where it is decided that measures should be taken, section 16(3) requires the Scottish Ministers to give notice to the person who carries on the business of fish farming or shellfish farming at the farm in question, and to consult that person in order to secure their agreement on the measures to be taken, etc. When agreement under 16(3) is reached, the Scottish Minister must prepare a “control agreement”, and section 16(4) specifies the matters that must be contained in such an agreement. Section 16(6) requires the Scottish Minister to send a copy of the control agreement to the person carrying on the business of fish or shellfish farming at the farm in question and section 16(8) makes provision for the control agreement to be reviewed at least once in every 18 months.
Section 17 - Control schemes
43.Section 17 applies where Scottish Ministers have given notice under section 16(3)(a) of the Act in relation to the presence of a commercially damaging species, and are satisfied either that it is not possible to secure a control agreement, or 6 weeks have elapsed since the notice and no agreement has been reached and Ministers remain of the view that measures should be taken to remove, reduce, prevent or otherwise control the commercially damaging species.
44.Section 17(2) requires in certain circumstances the Scottish Ministers to make a “control scheme” in order to ensure that any measures they consider necessary to remove, etc the species in question are taken. Where Ministers make a control scheme, they must notify the person who carries on the business to which the control scheme relates at least 14 days before the scheme comes into effect that the scheme has been made (section 17(3)). Section 17(4) and (5) specify, respectively, the matters which must and may be included in the control scheme, and the date by which any measures to be taken by the person to whom the scheme applies are to be completed. Section 17(6) introduces schedule 1, which makes provision about the making, variation and revocation of control schemes and appeals. Section 17(7) makes provision for the person who carries on a business to which a control scheme relates to take such measures as the scheme may require of them. Section 17(8) requires the Scottish Ministers to review a control scheme at least once every 12 months, and section 17(9) enables Ministers to undertake themselves any requirement of a control scheme where they are of the opinion that a person has failed to comply.
Section 18 - Emergency action notices
45.Section 18 applies where the Scottish Ministers are satisfied that a commercially damaging species is present on a fish farm or shellfish farm and that unless urgent action is taken, the species will spread quickly and have an immediate and significant adverse impact on other fish or shellfish or their commercial exploitability or the commercial or economic interests of fish or shellfish farmers. Where Ministers are so satisfied, section 18(2) provides an exemption to the notice process described in section 16(3), such that no notice or consultation to secure an agreement need be carried out. Instead, section 18(3) requires the Scottish Ministers to give an “emergency action notice” which notes their intention to take urgent action in respect of the commercially damaging species. Section 18(4) specifies the matters to be included in an emergency action notice, including the measures proposed to be taken to remove the species from the farm in question. Section 18(5) enables Ministers, no sooner than 14 days after the giving of the notice, to take the measures specified in the emergency action notice.
Section 19 - Appeals in connection with emergency action notices
46.Section 19 creates a statutory right for persons upon whom an emergency action notice has been served to appeal against the notice to a sheriff against the decision to give the notice or its terms. An appeal must be lodged within 14 days of the emergency action notice being given (section 19(2)). Section 19(3) states the sheriff may make any order on appeal he or she thinks appropriate and that the sheriff’s decision is final.
