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VOLUME 2 – ORAL AND WRITTEN EVIDENCE

CONTENTS

Annexe D: Oral Evidence and Associated Written Evidence

27 May 2009 (15th Meeting, Session 3 (2009))

Oral Evidence

Phil Alcock (Scottish Government)
Chris Bierley (Scottish Government)
Stuart Foubister (Scottish Government Legal Directorate)
David Palmer (Scottish Government)
Philip Robertson (Historic Scotland)
Linda Rosborough (Scottish Government)
Ian Walker (Scottish Government)

Supplementary Written Evidence

Cabinet Secretary for Rural Affairs and the Environment

10 June 2009 (16th Meeting, Session 3 (2009))

Written Evidence

Scottish Coastal Forum
Scottish Environment Link
Scottish Fishermen’s Federation
Scottish Salmon Producers’ Organisation
Scottish Sea Angling Conservation Network
Highland Council
Scottish Natural Heritage
Scottish Environment Protection Agency

Oral Evidence

Captain Jim Simpson (Scottish Coastal Forum)
Lloyd Austin (Scottish Environment LINK)
Patrick Stewart (Scottish Fishermen's Federation)
Professor Phil Thomas (Scottish Salmon Producers Organisation)
Ian Burrett (Scottish Sea Angling Conservation Network)
George Hamilton (Highland Council)
Colin Galbraith (Scottish Natural Heritage)
Andy Rosie (Scottish Environment Protection Agency)

Supplementary Written Evidence

Scottish Environment Link
Scottish Fishermen’s Federation
Scottish Salmon Producers’ Organisation, 11 June 2009
Scottish Salmon Producers’ Organisation, 17 June 2009
Scottish Natural Heritage, 11 June 2009
Scottish Natural Heritage, 17 June 2009
Scottish Environment Protection Agency

22 June 2009 (18th Meeting, Session 3 (2009))

Written Evidence

Solway Firth Partnership
British Ports Association
Scottish Renewables

Oral Evidence

Brian Irving (Solway Coast Area of Outstanding Natural Beauty)
Gordon Mann (Solway Firth Partnership)
Pam Taylor (Solway Firth Partnership)
Ron Bailey (Clydeport Operations Ltd)
David Whitehead (British Ports Association)
Morna Cannon (Scottish Renewables)
Jeremy Sainsbury (Scottish Renewables)

Supplementary Written Evidence

Solway Firth Partnership

1 September 2009 (19th Meeting, Session 3 (2009))

Written Evidence

Advocates for Animals
Sea Mammal Research Unit
Association of Salmon Fishery Boards
Scottish Natural Heritage
Crown Estate
Joint Submission from Orkney Islands Council, Shetland Island Council and Comhairle Nan Eilean Siar
Orkney Islands Council
Comhairle Nan Eilean Siar
Shetland Island Council
Association Of Scottish Shellfish Growers

Oral Evidence

Libby Anderson (Advocates for Animals)
Professor Ian Boyd (Sea Mammal Research Unit)
Brian Davidson (Association of Salmon Fishery Boards)
Professor Colin Galbraith (Scottish Natural Heritage)
Professor Phil Thomas (Scottish Salmon Producers Organisation)
Rob Hastings (Crown Estate)
Captain Nigel Mills (Orkney Islands Council)
Walter Speirs (Association of Scottish Shellfish Growers)

Supplementary Written Evidence

Advocates For Animals
Crown Estate

9 September 2009 (20th meeting, Session 3 (2009))

Written Evidence

Clyde Scottish Sustainable Marine Environment Initiative
Clyde Inshore Fisheries Group
Community Of Arran Seabed Trust (Coast), 13 June 2009
Community Of Arran Seabed Trust (Coast),14 August 2009
Cabinet Secretary for Rural Affairs and the Environment

Oral Evidence

John Eddie Donnelly (Clyde Scottish Sustainable Marine Environment Initiative)
Dr Billy Sinclair (Clyde Inshore Fisheries Group)
Howard Wood (Community of Arran Seabed Trust)
Richard Lochhead (Cabinet Secretary for Rural Affairs and the Environment)
Stuart Foubister (Scottish Government Legal Directorate)
David Mallon (Scottish Government)
David Palmer (Scottish Government)
Linda Rosborough (Scottish Government)

Supplementary Written Evidence

Clyde Inshore Fisheries Group
Cabinet Secretary for Rural Affairs and the Environment

Annexe E: Other Written Evidence

Animal Concern and Save Our Seals Fund
Argyll and Bute Council
British Marine Federation
British Shipping
Dr Sally Campbell
Federation of Scottish Aquaculture Producers
Forth Estuary Forum
Forth Ports
R H Guild
Hebridean Partnership
Isle Of Mull Wildlife Expeditions
Joint Nature Conservation Council
Jamie Grant, Macroberts Llp
Marine Bill Historic Environment Taskforce (facitlitated by Befs)
Marine Concern
Marine Conservation Society
Moray Firth Partnership
Jack Morrison
Ramblers Scotland
Royal Society Of Edinburgh
RSPB Scotland
Royal Town Planning Institute
Royal Yachting Association
Scottish Association for Marine Science
Scottish Boating Alliance
SCAPE Trust
Scottish and Southern Energy
Scottish and Southern Energy
Scottish Rural Property and Business Association
Scottish Water
Seafish
Sea Life Adventures
Seal Protection Action Group
Tara Seal Research
Tay Estuary Forum
Caroline Wickham-Jones

Stage 1 Report on the Marine (Scotland) Bill

Annexe D: Oral Evidence and Associated Written Evidence

15th Meeting, 2009 (Session 3) Wednesday 27 May 2009 – Oral evidence

27 May 2009 (15th Meeting, Session 3 (2009 )) – Supplementary Written Evidence

CORRESPONDENCE FROM CABINET SECRETARY FOR RURAL AFFAIRS AND THE ENVIRONMENT ON POTENTIAL STAGE 2 AMENDMENTS

Thank you for your letter of 27 May 2009 in which you requested details of amendments that the Scottish Government plans to introduce at stage 2 for the Marine (Scotland) Bill. Please see the attached document which provides details of potential amendments and which, I hope, will assist members with their scrutiny.

In general I would note that we are trying to retain some consistency with the approach set out in the UK Marine and Coastal Access Bill as we will be responsible for implementing provisions across the 12 nautical mile boundary between inshore and offshore zones. There were a large number of government amendments made in the House of Lords and we believe these were mainly technical, as for example to better define enforcement powers. Nevertheless, I will wish to consider each significant issue carefully and we are currently assessing the likely impact of those amendments. I would be happy to write again with my views on whether we will need to mirror any of these amendments once our analysis is completed.

There is also the likelihood of further amendment in the House of Commons, most of which I would expect to be of a technical nature, and I would wish, therefore, to consider whether the Scottish Bill also required such technical amendment. However, if such amendments radically alter the framework of process set out in the UK Bill we would have to consider whether, in the interests of consistency, we might wish to make similar amendments. My initial view is that we have a Scottish Bill fit for Scottish circumstances and I would be reluctant to alter our proposed framework unless there were overriding reasons of consistency.

An area of potentially greater importance for the Bill is aquaculture, and I am considering further if amendments to the Bill are needed on this complex issue.

I have also noted the provisional evidence session date of the morning of 9 September.

Richard Lochhead MSP, Cabinet Secretary for Rural Affairs and the Environment

18 June 2009

SUMMARY OF PROPOSED STAGE 2 AMENDMENTS TO MARINE (SCOTLAND) BILL

Marine Planning and the Marine Policy Statement

I intend to propose an amendment to Schedule 1 to require Scottish Ministers to notify the Secretary of State when planning in an area adjoining, or adjacent to, the English inshore or offshore areas, and to notify the DoENI when planning in an area adjoining to, or adjacent to the Northern Ireland inshore region. This is consistent with the provisions in the UK Bill (Schedule 6) requiring respective Administrations, including the Secretary of State to notify adjacent planning authorities.

Marine Licensing

I am considering the need to introduce a similar government amendment to that of the UK to cover the situation where certain submarine cables (e.g. transatlantic telecommunication cables to/from the European mainland that do not meet landfall in the UK) entering territorial waters from the Continental Shelf cannot be subject to the full licensing regime. This would be equivalent to clause 81 in the UK Bill.

Section 45 creates a register of information. There are some concerns around the confidentiality of information on the register and I may want to introduce an amendment to cover this. The equivalent drafting in the UK Bill 101 (5) (b) now reads: information must not appear in the register if “the appropriate licensing authority determines that its disclosure in the register would adversely affect the confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate commercial interest.”

Marine Protection and Enhancement

I am also considering some amendments to the Nature Conservation parts of the Scottish Marine Bill.

Section 66 requires that the Scottish Ministers must send a copy of every MPA designation order to persons they consider likely to be interested or affected by the order. I now consider this puts too much of a regulatory burden on Government. Instead I propose that the Scottish Ministers are required to publish a notice of an MPA designation order in such a manner that will bring it to the attention of persons affected by or interested in the making of the order, and to state where a copy of the order can be viewed or obtained. This is similar to a recent House of Lords amendment to the UK Bill.

Section 91 requires that Scottish Ministers, when reporting to Parliament on their MPA designations at each relevant period, state the extent to which in their opinion those sites, taken together with any European marine sites and offshore European marine sites established in the UK form a network of sites which contributes to the ongoing improvement of the marine environment in the UK marine area. I intend to amend the Bill so that other relevant sites such as SSSIs and Ramsar sites, where they have a marine element, may be included within the MPA network that is reported on. This is similar to a recent amendment to the UK Bill in the House of Lords.

I am also considering introducing an amendment which will require the Scottish Government to publish a document stating how it will use its MPA powers to designate MPAs in order to contribute to an ecologically coherent network of MPAs.

I am considering amending the Bill to ensure that public authorities are not required to consult the relevant nature conservation authority each and every time they carry out a routine statutory duty that could affect an MPA, provided that they have been previously advised by the statutory nature conservation body on carrying out that category of routine works. This is intended to have similar effect to recent amendments to the UK Bill in the House of Lords.

With relation to the offences of damaging an MPA or carrying out an action which violates a marine conservation order, I am considering introducing an amendment to make it immaterial for a person who has done any of these acts to claim, as a defence, that they did not know about the protected features or the marine conservation order. This is similar to an amendment to the UK Bill made by the House of Lords.

I intend to amend the Bill to make clear that "animal" in Part 4 includes any egg, larva, pupa or other immature stage of an animal. This is to ensure they can be protected at all stages of their lifecycle where necessary. This is similar to a recent amendment in the UK Bill to the House of Lords. I will look into whether any further clarification of the meaning of of plant is also needed.

Conservation of Seals

I intend that the common enforcement powers in Part 6 of the Bill be extended to include offences relating to seals. Although I expect most, if not all, enforcement of seals legislation to be taken forward by the police, it remains possible that Marine Scotland officers could occasionally become involved in such cases and I intend to amend the Bill to ensure they have the necessary powers.

I wish to amend section 107 (1) to make clear that the killing or taking of seals referred to therein is to be construed as being for the purposes for which a licence has already been granted under section 98.

10 June 2009 (16th Meeting, Session 3 (2009) – Written Evidence

SUBMISSION FROM SCOTTISH COASTAL FORUM

Introduction

The Scottish Coastal Forum (SCF) engages representatives from sectors with an interest in the use, development and management of Scotland’s coastal resources and encourages debate on coastal issues at a national level. The Forum has championed the development of an integrated approach to coastal zone management.

The SCF was set up by Ministerial invitation and under independent Chairmanship in November 1996 to:

encourage a voluntary, sustainable and holistic approach to the management of Scotland’s coasts through the formation of local coastal fora;

act as the national focus for coastal issues and co-ordinate the dissemination of advice on best practice;

reflect views and aspirations of local fora for the coast of Scotland and guide a national policy framework within which local initiatives can operate;

offer advice to Government in the development of coastal policies for Scotland.

The Forum’s membership comprises representatives from the following organisations:

  • British Geological Survey
  • British Ports Association
  • British Marine Federation
  • CoSLA
  • The Crown Estate
  • Defence Estates
  • Royal Yachting Association
  • Scottish Association of Marine Science
  • Scottish Fishermens Federation
  • Scottish Salmon Producers’ Organisation
  • SEPA
  • SNH
  • Scottish Water
  • Scottish Environment Link
  • Scottish Renewables
  • SportScotland

Additionally, the SCF has a strong working relationship with the seven Local Coastal Partnerships around Scotland. A representative from these groups is the Forum’s Vice Chair and regular meetings are held between the Forum and the Partnerships to facilitate an exchange of information between the national and regional levels relating to the many issues involved in coastal management around Scotland and throughout the UK.

The SCF contributed to the work of both AGMACS and the Sustainable Seas Task Force and is currently working with the Scottish Government to research stakeholder views on the criteria by which Scottish Marine Regions may be defined. SCF recognises that many issues that members raise will relate to matters to be considered under secondary legislation. This matter, along with the range of members’ views on the subjects under discussion mean it is challenging for the Forum to find a common viewpoint on wider policy issues. As a result, for this stage of the Bill’s progress the Scottish Coastal Forum has decided to concentrate its evidence on the issues relating to marine planning and its relationship to Integrated Coastal Zone Management.

SCF members have, therefore, been encouraged to submit their own written evidence on the Bill directly to the Committee and we are pleased that some members have also been invited as witnesses in their own right.

Policy Objectives

The Scottish Coastal Forum strongly welcomes the Bill’s intention to provide a framework to plan for, and manage, the growing and competing demands made on Scotland’s coastal and marine resources.

An integrated system of marine and coastal management, based on the principles of sustainable development and providing for marine planning and the streamlining of functions, will help increase business and investor confidence whilst protecting the natural heritage of Scotland’s coasts and seas.

Part 2 – Marine Planning

The SCF welcomes the introduction of a new regime for planning beyond MLWS provided marine planning integrates with the particular requirements of the land/sea interface and coastal waters. This is necessary at both the national level and in reflecting more localised specificities through the Regional Marine Plans.

We offer some thoughts on the particular clauses relating to this element:

3 (1) SCF suggests that amending the clause to read that Scottish Ministers “will” prepare and adopt a National Marine Plan would send a stronger and more positive message about this initiative,

3 (3) SCF considers that a National Marine Plan should include economic, social and natural heritage objectives. The word ‘may’ should be altered to ‘must’ in order to encapsulate these three fundamental aspects of a plan that considers the long-term and sustainable utilisation of coastal and marine resources. We also note that there is no such similarly explicit requirement made of the Regional Marine Plans and believe this should be included.

3 (4) Some of SCF’s members have queried whether there would be provision in the Bill to have marine plans created for the sub-regional level, if Scottish Marine Regions cover a large area. It is not clear from this clause whether such action would be possible. We suggest that the clause be amended so that the possibility is not precluded if considered appropriate in due course.

3 (5) Although this clause reflects the relationship between a Regional Marine Plan and the Scottish National Marine Plan, the Bill does not reflect the possibility that a Scottish Regional Marine Plan may have to have a close relationship with a marine plan created under a non-Scottish regime. The Bill is silent on the external obligations that set the context for the Scottish National Marine Plan, including wider obligations and cross-border issues. We feel that further consideration on this would be welcomed by those attempting to gauge how an integrated approach to coastal and marine management might work in, for example, the Solway Firth.

Scottish Marine Regions

SCF is working with the Scottish Government to determine possible options for potential Marine Regions. The results of this research will be available over the summer and we welcome the Government’s undertaking to consult on their final options in due course. We believe that an appropriate division of the coastline for localised planning purposes is a valuable element of a marine planning regime although we recognise that no single model will be appropriate for all circumstances.

Marine Planning Partnerships

Regional Marine Planning is expected to be delegated to Marine Planning Partnerships (MPPs). We anticipate that supplementary guidance will be required to determine and explain the make-up of these Partnerships, since the Bill is rather vague in its details relating to them. Although we recognise that the Bill attempts to be permissive in its intent, rather than overtly restrictive, some additional information on how these Partnerships are to be created and are to function would be welcome. In particular, our members would appreciate advice on how existing bodies may be incorporated into MPPs, including how any statutory functions are to be accommodated within the new regime.

Whilst we enthusiastically welcome the undertaking to involve stakeholders and local bodies in planning the future uses of resources within their area, we are aware that localised concerns may not be fully aware of a much bigger picture. This is particularly true when considering developments within an industry that has interests across more than one SMR and may even be pan-UK in its scope.

The relationship between regional Marine Plans and the National Marine Plan is key. There is a strong view within the SCF that it is important that Marine Scotland drives the regional planning process, albeit in tandem and close co-operation with regional Marine Planning Partnerships. Through a regional network, Marine Scotland should work with local stakeholders and statutory bodies in delivering plans that accommodate the requirements of Scottish Marine Regions with due regard for the overall National Marine Plan.

Delegation of functions relating to regional marine plans

SCF welcomes the fact that a level of local planning is to be incorporated within a National Marine Plan but would seek some comfort that the timelines for National and Local plans will be complementary.

The SCF understands that there is a clear intention, which it strongly supports, to utilise local bodies in regional marine planning. Indeed, the Bill qualifies that those to whom the functions are to be delegated are “to be taken to have all the powers necessary”. We would seek clarification of the Government’s intention to allocate appropriate levels of authority to non-statutory bodies, such as Local Coastal Partnerships (LCPs), which would allow them to contribute meaningfully to the planning and implementation process. We understand that such bodies as currently constituted, although well placed to take a strategic and holistic view of the relationships required to plan across a body of water such as a Firth, may not be able to participate directly in the process without evolving and adapting to the new regime.

The SCF believes that some of the LCPs, with additional powers as necessary, will be able to play an important role in delivering the aims of the Bill in their present geographical areas or, in an expanded role, to work with and within Scottish Marine Regions.

Integrated Coastal Zone Management

While we welcome the statement in the Policy Memorandum that “Scottish Ministers remain committed to ICZM as a strategic management process”, there is some disappointment within the Forum that an explicit duty on Marine Scotland to deliver ICZM has not been included in the Bill.

We note the difficulty in providing a single accepted definition to describe ICZM, or more particularly the concept of the ‘coastal zone’ itself. However, we are appreciative that much of Schedule 1 describes the process by which an integrated approach to the preparation and adoption of marine plans should be made. In particular, we welcome the importance placed on stakeholder participation via the requirement to prepare a Statement of Public Participation (SPP) for both the national and regional Marine Plans.

Scottish local coastal fora have, for a number of years, brought together statutory and non-statutory parties within defined coastal areas, fostering a strategic approach to the use of resources and their sustainable management for the long term. Their experience suggests that much can be achieved with good-will and support for practical, community based, projects. A clear direction from Government requiring local authorities and others with a statutory remit affecting marine and coastal resources to work together, would now help those organisations incorporate relevant policies and promote an integrated approach across the land/sea interface into their statutory Plans and operational activities. We would welcome a process that addresses this requirement for a central driving force and clear communication pathway to deliver a truly integrated approach. The Scottish Coastal Forum would be pleased to assist the Government in developing this.

The SCF is aware that an integrated approach to coastal management, especially one that embraces ecosystems, requires genuine partnership working across administrative boundaries. This will range from Firths that are entirely within Scotland’s territorial waters to cross-border estuaries and other areas beyond the 12 nautical mile limit. An integrated approach to the management of Firths, led or facilitated by suitably constituted strategic body(ies) taking an holistic view and driving integration between constituent organisations, is recommended. Work is required beyond just planning for a given area; external links and relationships must also be considered. The SCF also supports the idea of a formal concordat between the devolved administrations and the UK Government to facilitate effective joint planning across national boundaries.

Conclusion

The Scottish Coastal Forum broadly welcomes the Marine (Scotland) Bill as a framework that will drive a new, integrated approach to the sustainable use, protection and management of coastal and marine resources. We believe that there are particular issues within the coastal zone that need further consideration but are aware that many will be dealt with as Government thinking develops and secondary legislation emerges.

Some of our constituent members are making submissions relating to their own area of particular interest. This joint submission is, by necessity, limited in its scope but the SCF would like to reaffirm its readiness to work with the Scottish Government as a representative body of stakeholders in the further development of marine and coastal legislation for Scotland’s interests.

Scottish Coastal Forum

10 June 2009

SUBISSION FROM SCOTTISH ENVIRONMENT LINK

Summary

  • Scottish Environment LINK is the umbrella body for Scotland’s voluntary environmental organisations, representing around 500,000 members. Scottish Environment LINK’s Marine Task Force and its campaign for UK and Scottish Marine Bills is supported by:

    • Hebridean Whale and Dolphin Trust
    • Marine Conservation Society
    • National Trust for Scotland
    • RSPB Scotland
    • Scottish Wildlife Trust
    • WWF Scotland
    • Whale and Dolphin Conservation Society

This evidence complements individual submissions by some of the above organisations.

  • Scottish Environment LINK’s Marine Task Force (LINK MTF) welcomes the introduction of the Marine (Scotland) Bill to Parliament and the opportunity to provide written evidence to the Rural Affairs and Environment Committee to inform its scrutiny of the general principles of the Bill.

  • We are pleased to see that the Marine (Scotland) Bill provides for a system of marine planning, a streamlined licensing system in which decisions are made in accordance with marine plans, and proposals for improvements in marine nature conservation, including new marine protected areas.

  • We believe that the Marine (Scotland) Bill as introduced has the potential to improve on existing provisions for the protection and sustainable development of the marine environment, allowing Scotland to play its part in meeting a range of international commitments. Amendments to specific parts of the Bill, as outlined below, will significantly improve the contribution the Bill makes in this regard.

  • We are concerned however, that the provisions in relation to environmental recovery are much weaker, with no provisions to improve or recover the ecological status of Scottish waters beyond the boundaries of marine protected areas. The requirement to promote recovery of the marine environment as a whole is enshrined in various international and national agreements, including the Convention on Biological Diversity, the Marine Strategy Framework Directive and the recently published UK High Level Marine Objectives. The key outcome of the Bill, the one by which its ultimate success is measured, must be a healthy, well functioning and biodiverse marine environment. In order for the Bill to contribute to this outcome we believe that objectives relating to the health of marine species, habitats and ecosystems (marine ecosystem objectives) must play a pivotal role. Such objectives must provide direction to, and underpin evaluation of, the effectiveness of the marine planning system. There must be a duty on public bodies to contribute to their achievement. We are concerned that the Bill allows for ecosystem objectives to be traded-off against short-term social and economic objectives, resulting in a continued deterioration of both the sea’s health and its productivity.

  • There must be an independent, transparent appeals process against licensing and planning decisions which is accessible to applicants and appropriate third parties. Such an appeals process must inspire the confidence of all stakeholders, and help Scotland meet the requirements of the Aarhus Convention. This is particularly important as the licensing body, Marine Scotland, is part of Scottish Government.

General Duties

We believe that the Marine (Scotland) Bill should provide the framework for the protection, recovery and sustainable development of the marine environment, based on the ecosystem approach1. Therefore we believe that there should be specific duties on Scottish Ministers to further the achievement of sustainable development, and to deliver an ecosystem approach. We note that Part 1 of the recent Flood Risk Management (Scotland) Bill contained the General duty on Scottish Ministers, SEPA and responsible authorities to ‘act in the way best calculated to contribute to the achievement of sustainable development’ and we believe it would be appropriate to have an additional Part 1 in the Marine (Scotland) Bill with similar provisions. In Sustainable Seas for All: a consultation on Scotland’s first marine bill the policy intention to place a duty on Marine Scotland to deliver ecosystem management was included (Paragraph 55). This duty does not appear in the Marine (Scotland) Bill and given that an ecosystem-based approach is a requirement of the Marine Strategy Framework Directive (MSFD) and such an approach was signed up to by all four UK administrations2 we believe that a duty should be placed on Scottish Ministers to deliver an ecosystem approach to marine management. Finally, as science and data in the marine environment is often limited, there will be a continuing need to adopt the precautionary principle, a general principle of EU environmental law required by the MSFD. Reference to the precautionary principle, and the need to protect and preserve the marine environment, prevent its deterioration or, where practicable, restore marine ecosystems in areas where they have been adversely affected, should also be made in the new Part 1 of the Bill.

Part 2 - Marine Planning

The Bill lacks both a definition for marine planning and a statement of purpose for the Marine Planning part of the Bill. We believe that a statement of purpose in relation to protection, recovery, prevention of deterioration and sustainable development is necessary to provide the context and direction for marine plans in the light of our international commitments.

We believe that a major potential strength of the Marine (Scotland) Bill is the 3-pillar approach to nature conservation. As part of the first pillar (wider seas measures), marine planning would be expected to play a major role (Policy Memorandum, para 45). As such, marine planning should be used to, ‘protect, preserve, prevent deterioration and, where practicable, restore marine ecosystems in areas where they have been adversely affected' as required by the MSFD. It is also vital that there should be a duty (rather than discretion as at present) on Scottish Ministers to prepare and adopt both national and regional marine plans. We believe that the ecosystem approach should be delivered through planning at a regional seas scale. In order to achieve this, that there must be plan coverage for the whole Scottish marine area, including regional marine plans covering the entire Scottish inshore.

We believe that all plans must be underpinned by marine ecosystem objectives. There should therefore be a duty (rather than discretion as at present) to include marine ecosystem objectives in both national and regional plans. There should also be a further duty requiring public authorities to contribute to the achievement of marine ecosystem objectives.

Section 4 states that a national or regional marine plan comes into effect when the plan is published by Scottish Ministers in accordance with schedule 1. As is the case in the terrestrial planning system, it should be policy that draft marine plans are given material consideration status.

Section 6 sets out provisions for the withdrawal of marine plans. It is unclear under what circumstances withdrawal of a marine plan could occur. We believe that a marine plan should not be withdrawn unless or until a new plan has been drawn up and agreed.

We are concerned that Section 11 does not secure strong compliance with marine plans. The inclusion of the phrase ‘unless relevant considerations indicate otherwise’ (11(1)), with regard to public authorities making authorisation or enforcement decisions in accordance with marine plans, appears to give public authorities excessive discretion to disregard marine plans. We have taken legal advice on this matter and no relevant judgements could be found to interpret the phrase ‘relevant considerations indicate otherwise’. We assume that the term ‘relevant considerations’ carries the same connotations as the term ‘material considerations’ that is used for terrestrial planning, and consequently, could have the same general interpretation. It may therefore be appropriate to use the term ‘material considerations’ as is used on land, so that the interpretation is clear. We recognise however, that the use of a terrestrial term would bring with it a body of case law that is terrestrially focussed and therefore not suitable for use in the marine area. We therefore believe that if the term ‘relevant considerations’ is used for marine planning, there should be a requirement to produce guidance that would prescribe the circumstances under which decisions are allowed to deviate from the agreed marine policy. Although the public authority has to state their reasons under section 11(2) for taking a decision against the marine plan, this section does not require the public authority to justify such a decision.

The circumstances provided for an appeal against a marine plan (Section 13) are very limited. Our legal analysis of the Bill suggests that the limited scope of judicial review may fail the third part of the Aarhus Convention3 (access to justice). There is some legal debate as to what the scope of the Convention is, and whether the rights particularly to access to justice cover all environmental matters or alternatively just those secured by the Convention. This is a wider issue that will need to be addressed for appeal mechanisms across a wide range of legislation and therefore the effects on marine legislation should be revisited at some point in the future, for instance, following the Gill Review.

A three tier planning system was proposed in Sustainable Seas for All: a consultation on Scotland’s first marine bill. However, the Marine (Scotland) Bill only refers to the national tier and the regional tier. We assume that the third tier refers to the Marine Policy Statement (MPS), but there is no mention of this in the Bill. Following agreement at the Joint Ministerial Committee, should Scottish Ministers be content to adopt the final MPS, any marine plans prepared by Scottish Ministers must be in conformity with the MPS. The text of the Joint Ministerial Committee also states that …Scottish Ministers would take any appropriate action to reinforce this in the Scottish Bill. Whilst we recognise that Scottish Ministers have an option to opt out of the MPS we believe that, given the relative importance of the MPS to marine planning in Scotland, there must be some reference made to the MPS (should it be adopted) or to any alternative arrangements that would be made should agreement fail to be reached.

In order for marine management to deliver an ecosystem approach it must follow ecological rather than political or administrative boundaries. This would require administrations to work together across administrative boundaries. We believe that users would benefit from joint planning, especially in the Solway Firth and northern North Sea and that we should avoid situations arising where more than one plan is produced for a regional sea or estuary. We believe that a formal concordat between the UK and devolved governments should be drawn together to facilitate effective joint planning across boundaries.

Sustainable Seas for All: a consultation on Scotland’s first marine bill raised the issue of extending the biodiversity duty to 200nm. We believe that Scottish Ministers should include a provision to promote biodiversity in the Scottish National Plan within the Marine (Scotland) Bill. This could then extend to 200nm under the executive devolution of marine planning, following agreement of the UK Government. Following the statement by Lord Hunt of Kings Heath that the UK Government could see no reason to object to a plan on the grounds that it contained such a provision4.

Part 3 - Marine Licensing

We believe that notice of applications (Section 19) should also be published on a dedicated website. This would help accomplish 19(2) and allow interested parties to monitor all applications. We also believe that all licence applications should be published (Section 19(6)).

Section 24 gives the power to Scottish Ministers to exempt certain activities from requiring a licence, or to give a licence automatically if certain conditions are satisfied. This has the potential for a wide range of activities to be exempted. No criteria are given in the Bill as to what activities would be exempted. It would be desirable to have some threshold of criteria included in section 24 in a similar way to section 25.

Whilst we agree in principle with the approach taken in Section 25 (similar to Controlled Activities Regulations - CAR) we recognise that there are a number of problems with the CAR approach. It is vital that cumulative impacts can be taken into account when registering activities and a mechanism to take account of such impacts must be included. It is also important to ensure that a mechanism is put in place to recognise different sensitivities in different locations.

We believe that provisions for appeals against licensing decisions should appear on the face of the Bill rather than in regulations (Section 29). This is an area of considerable uncertainty, and we are not clear on how such appeals can occur in a transparent manner. In addition, we believe that in order to secure compliance with the Aarhus Convention, there should be an appropriate third party right of appeal on all licensing decisions.

We are unclear as to the threshold between ‘serious harm’ and ‘harm’ (Sections 34, 35 and 46). We believe that reference to serious should be removed from Section 46(4) as these enforcement tools should be available where an activity is causing/is likely to cause any harm.

We are concerned that marine fish farming will not come under the licensing provisions in the Bill. Marine fish farming is potentially harmful to marine ecosystems and this omission risks undermining the objectives of the Bill.

Part 4 – Marine Protection and Enhancement: The Scottish Marine Protection Area

In line with our international commitments under OSPAR, WSSD and MSFD we believe that it is necessary to place a duty on Scottish Ministers to designate MPAs (rather than discretion as at present - Section 58) in order to contribute to an ecologically coherent network of well-managed MPAs. Currently, the only reference to a network comes under Section 91 (Reports to Parliament). Protection of marine fauna, flora, habitats and ecosystems cannot be achieved through the designation of stand-alone sites. Rather an ecologically coherent network of sites is required, on the basis of best available science. It should adhere to the principles of: representation (the network should include examples of the full range of marine features present in the marine area); replication (each feature should be represented in multiple sites, which are of adequate size and quality to protect against accidental loss, spread the risk of damaging events and long term changes and ensure the natural variation of the feature is covered); and connectivity (sites within the network should be located so as to allow for the movement of flora and fauna of different life stages (spores, eggs larvae, juveniles and/or adults) between sites). We believe that it is vital that the Bill is amended to place a duty on Scottish Ministers to deliver an ecologically coherent network of MPAs that includes the principles of representation, replication and connectivity.

We believe that the conservation objectives for an MPA are a crucial element of the MPA provisions in the Bill and as such, it is essential that the body tasked with producing these objectives has the necessary expertise. We believe that the appropriate statutory nature conservation body is best placed to do this, and should be placed under a duty in this respect.

We believe that the designation of Nature Conservation MPAs must be based on the best available scientific advice and on biodiversity needs alone. We are therefore reassured that Scottish Ministers may have regard to social or economic consequences of designation only where the desirability of designating 2 or more areas is equal (Section 59(5)).

We welcome the statement in Section 59(8) that conserving ‘a thing’ includes reference to assisting in its conservation and enabling or facilitating its recovery. However, we feel that the reference to ‘increase’ is rather ambiguous as it would be unhelpful and even irresponsible to attempt to increase conservation of ‘a thing’ beyond its natural recovered state.

We believe that there should be a duty on SNH to give advice on all Nature Conservation and Demonstration & Research MPAs (Section 69) and for all public authorities to act in accordance with that advice. Whilst Section 71(6) and 72(8) require public authorities to have regard to any advice given by SNH, Section 89(1) does not appear to do so.

Section 71, 72 and 83 make reference to ‘other than insignificantly’/ ‘significantly’ with regard to affecting the protected features or stated purpose of an MPA or hindering the achievement of the stated conservation objectives or stated purpose of an MPA. However, it is not clear that the public body would have the appropriate expertise to make such a judgement call. Reference to ‘other than insignificantly’/ ‘significantly’ should therefore be removed and the advice of SNH should be followed.

It is not clear whether Section 82 also covers urgent marine conservation orders or urgent continuation orders.

Section 83(1)(a): and should be amended to or.

The specific defence for sea fishing (Section 85(2)) creates some concern. The use of reasonably in 85(2)(b) gives a low threshold for using this defence and we believe that better wording would be to use a test of using all necessary precautions.

Post-designation it is essential that the conservation objectives are used to develop a management scheme for each MPA. This will translate the conservation objective into clear management guidelines, making it easier for public bodies and other organisations and individuals to understand the management requirements and the implications with regard to their own functions and activities. Furthermore the management scheme will facilitate monitoring of the status of the site and reporting against the delivery of the conservation objectives. The level of detail required in the management scheme will be dependent on the level of protection needed, the features to be protected and the range of activities requiring management. We believe the Bill should include a duty on SNH to produce a management scheme for all sites as soon as reasonably practicable after designation

There is no requirement for sites to be monitored. In the absence of such monitoring, it would appear to be impossible for Scottish Ministers to report on the extent to which the stated conservation objectives have been achieved (91(3)). We believe that the Bill should include a monitoring requirement for all MPAs in order that progress towards achieving conservation objectives can be assessed. In addition, we believe that SNH are best placed to monitor sites in order that the report can be based on expert opinion.

It is vital that the provisions of the Inshore Fishing (Scotland) Act 1984 can be used effectively and quickly to ensure protection of MPAs designated under the Marine (Scotland) Act. A clear link should be made between the two pieces of legislation to reinforce this.

Section 87(3) allows a marine management scheme to impose requirements in relation to the exercise of any functions which are not exercisable within the area to which the scheme applies but the exercise of which may have an impact on the protection of that area. We strongly support this provision to ensure that activities occurring outside an MPA do not affect the protected features, the stated purpose of an MPA or hinder the achievement of the stated conservation objectives or stated purpose or the conservation objectives of the MPA. An equivalent provision must be included for the conservation objectives of an MPA or Section 87(1) must be amended to place a duty (rather than discretion as at present) on relevant authorities to produce a management scheme for all sites.

Part 5 – Conservation of Seals

  1. We support the Bill’s overhaul of seal conservation legislation, but we are concerned that loopholes or omissions may remain which allow for the unnecessary killing of seals. To fully implement the provisions of the EU Habitats Directive, the Bill must ensure that shooting can only occur as a last resort, by licensees, within strict guidelines, and that all killings are accurately reported to the Scottish Government.

Scottish Environment LINK Marine Task Force

June 2009

SUBMISSION FROM SCOTTISH FISHERMEN’S FEDERATION

The Scottish Fishermen’s Federation is grateful for the opportunity to present evidence to the Rural Affairs and Environment Committee on the Marine (Scotland) Bill. This and the UK Marine and Coastal Access Bill will, when enacted, have a fundamental effect on the management of our industry’s home environment; we must, therefore, have good legislation. For clarity, our comments are contained in the attached spreadsheet, with section and part identified for each.

We wish to make some general remarks in addition:

  • The resultant legislation and other measures must be proportional to the size of the problem. Thankfully, the seas around Scotland are not filled with conflict and urgent competition; this should allow the Bill to be processed in a productive atmosphere. Helpfully, some important aspects will not be making a cold start; the techniques of marine planning are already in place and practised in the fishing industry’s present interactions.

  • Therefore, in order to ensure success, Governments must have the courage to build upon the existing, and widely practised, system of co-operative marine planning.. The alternative, based on prescriptive terrestrial law and practice, is doomed to failure.

  • We are pleased to see embedded in the Marine (Scotland) Bill process inclusion and some emphasis on the importance of sustainable use and development of the sea. The fishing industry is fully aware of the complementary imperative for conservation and protection and is prepared to act accordingly. These twin aims are not mutually exclusive.

  • The system of marine protection envisaged by the Bill, and also required by international obligation, requires to be objectively managed for the benefit of all. Recommendations, which will have the effect of restricting or eliminating current rights and freedoms, must be based on sound science, designed to fulfil the objectives fixed by Parliament, alone, and free from populist or political taint.

  • Balance between the objectives of the Bill must be maintained at every step in the process of its development. Neither production and extraction, nor conservation can be allowed to assume overall primacy. Both must be served by the end result.

Finally, although the fishing industry in Scotland may have much to lose and little to gain from the immediate consequences of implementation, the Committee may be assured of the fishing industry’s continuing commitment to responsible use of the sea and the success of this visionary project.

Scottish Fishermen’s Federation

1 June 2009

SCOTTISH MARINE BILL
           
Part/Schedule Name Section Subsection Subject SFF Comment
           
1 The Scottish Marine Area General No Comment
   
2 Marine Planning
3 (2) (a) Sustainable development A definition, if only for those involved in the context of the extractive industry known as fishing, of "sustainable development" would have been helpful. The fear is that fishing will be torn between the limits imposed in a legislative jungle which includes not only this legislation, but also the UK Act, the effect of the European Marine Strategy Framework Directive and OSPAR requirements, on the one hand, and the requirements of a reformed CFP and all that flows from it, on the other.
3 (3) Marine environmental and socio-economic Objectives It is essential that exploiters of the marine environment are involved in the development of the Objectives which may be included in the Plan. Whether or not they are included, they must be agreed with the intended contributors to this process, in advance of the drafting of the Plan so as to avoid wrangling if they are, in future, to be relied upon. SFF is aware of the excellent work being undertaken by SAMS in relation to socio-economic objectives but is much less clear as to what is happening with the environmental objectives.
8 Delegate body SFF favours the alternative proposed of a group of persons nominated by Ministers as opposed to a public body, presumably being a Local Authority, to be the lead body. The group approach allows the joining together of regulators and stakeholders on a basis of equality. In such an arrangement with the relevant Local Authority will be strongly represented so dispelling any argument of democratic deficiency.
11 Plan application The SFF does not appreciate this provision that promotes public authorities, in contrast to SFF members, not being bound by the Plan but only having to have regard for it. It is noted that authorisation and enforcement decisions must be taken in accordance with the Plan, unless undefined relevant considerations indicate otherwise.
   
3 Marine Licensing
18 (see also Section 29) Application for a Licence The effect of a grant of permission in the marine environment can have, and usually does have, an effect which is not reflected in the consequences of a grant of terrestrial planning permission. On land the exercise a grant of planning permission will result, in the vast majority of cases, in financial compensation for those thereby displaced. That is not the case where in the marine environment those exercising the public right of fishing are displaced. The tenuous position of those exercising public rights is effectively ignored. Those persons should be supported by a statutory duty of pre-application consultationby intending applicants and a right to a third party appeal against a grant.
20 Determination of applications While there is a duty to take into account the effect of a grant upon the legitimate uses of the sea, there is no assistance, unless it will appear in the Plan, as the weight to be given to this and the other specified considerations.
25 Environmental impact threshold The SFF proposes that an activity which would otherwise be only liable to registration be subject to licensing if objected to. Notification of intention to register should therefore be given to enable the licensing regime to be invoked.
27 Special procedure for electricity works Clarification is being sought that the provision applies only to generating stations having a capacity of 50 MW or more.
37-41 Monetary Penalties The the system proposed for fixed and variable penalties is opposed by SFF. No objection is being taken, per se, to a system of administrative penalty. However, an appeal against the imposition of a penalty may not lie, according to the draft legislation to a court. It is also unclear if the facts upon which Scottish Ministers "are satisfied beyond reasonable doubt" can be challenged by the use of the rules of evidence of Scots Law. SFF strongly recommends that the basis of the system of administrative penalty which it has agreed with Marine Scotland be adopted as an alternative. That permits a person who has been served notice of penalty to opt for a reference of the matter to the Procurator Fiscal, who then may proceed with the matter in accordance with Scots criminal law and procedure.
54 Marine Fish Farming SFF is firmly of the view that if a unified and simplified system of marine planning is to be introduced to Scotland, no sustainable argument exists for the retention of the duty of Local Authorities to determine by the use of a rigidly terrestrial planning procedure, marine fish farm applications. When the decision was taken over 10 years ago to remove the Crown Estate's planning role in this regard, the possibility of a comprehensive marine planning system, which would be firmly based on the dynamics of the marine environment, was only a gleam in the eye of a few fanatics.
   
4 Marine Protection/Enforcement
58 Marine Protected Areas Their is no Parliamentary or other check proposed on the general duty of Ministers to act reasonably in the designation of an MPA. The designation does not in itself require a change in behaviour but then neither does the adoption of a Development Plan. However it immediately introduces presumptions which could lead to substantial consequences upon such as the permitting of development. SFF strongly recommends that such a designation is subject to the negative Parliamentary procedure and that a proposal to designate as only presented in conjunction with its draft Marine Conservation Order, if one is intended.
61 Demonstration etc MPAs Demonstration and Research MPAs should only be permitted where there will not to be any materially adverse effect upon existing activity. A procedure to arbitrate where a claim of material disadvantage is made, is required.
63 Historic MPAs SFF expresses a concern that an Historic MPA can be declared where there is no adequate evidence, but only a belief, that an marine historic asset of national importance, exists.
65 Publicity etc If pressed, SFF would support a mandatory public enquiry where the claim of material disadvantage arises as the result of a proposed designation.
67 Urgent designations The life of an urgent designation should not exceed the life of the relevant urgent MCO, which is a maximum of 12 months (s. 77 (2b)).
74 Marine Conservation Orders SFF approves the flexibility proposed for MCOs, which is in stark contrast to the rigidity of the rules which apply to European Marine Sites. The procedure by which the Firth of Lorn came to be closed, the effect of that closure and the expensive and time-consuming procedure that is necessary to determine whether or not it can be reopened is an obvious example.
79 Hearings The grounds for instructing a hearing should be communicated at this stage. Otherwise industry will be forced to accept a procedure without knowing what rights it might have to appeal the outcome of that procedure.
84 Offences marine historic assets. The proposed offence should relate to damaging the asset or impacting on the protected area in a way which gives rise to a reasonable assumption that the impact will lead to damage to the asset. The offence, as proposed, is far too wide.
85 Exceptions SFF supports, as might be imagined, the fisherman's defence. While the provision derives from the UK Bill it should not, solely for that reason, be amended if the UK provision is.
   
5 Conservation of Seals
       
6 Common Enforcement Powers General Further consideration is being given by SFF to this Part. However it welcomes any questions that the Committee may have.
     
7 General Provisions No Comment
   
Schedule 1 Marine Plans
   
2 Civil Sanctions
   
3 Warrants
   
4 Consequential

SUBMISSION FROM SCOTTISH SALMON PRODUCERS’ ORGANISATION

Overview

Sustainable Seas for All, the consultation document leading up to the Marine (Scotland) Bill, correctly highlighted the planning and regulatory regime for Scottish aquaculture as being bureaucratic and overly complex, creating barriers to achievement of Scottish Government’s strategic objectives and the EU’s policy aims. Member companies of the Scottish Salmon Producers Organisation (SSPO), who are responsible for 95% of farmed salmon production in Scotland, fully endorsed this analysis and welcomed the prospect of a Marine Bill promising to address the issues.

However, the industry is dismayed that the Marine (Scotland) Bill (as introduced) has singularly failed to deliver on that promise. Not only does it not simplify the present planning and regulatory system – a stated objective of the Bill - it sets out arrangements that are significantly more complex and less streamlined than those which presently exist.

Future development of scottish aquaculture

Scottish Government statistics show that the primary production of the aquaculture industry is worth some £400m per annum made up of £382m for farmed salmon, £10m for rainbow, brown and sea trout, £2m for other species and £5m for shellfish. Aquaculture is Scotland’s largest food export industry, creating about 1,500 jobs in employment on farms with a further 4,700 in processing and manufacturing. It is estimated that the industry could grow by around one third over the next 5-7 years, strongly supporting the Scottish Government’s objective of sustainable growth and in line with the EU’s aquaculture strategy. However, there is no realistic prospect that such growth and development of the industry will take place unless the failings of the Marine (Scotland) Bill (as introduced) are addressed.

Marine Bill proposals

SSPO fully supports the objectives of the Marine Bill: to introduce a planning system and arrangements that will help to reconcile and manage competing demands on marine areas; and to introduce an overarching planning and marine licensing role for the Scottish Government (through Marine Scotland). This will set marine policies and also provide an activity licensing system for marine activities. However, uniquely amongst all marine activities, fish farming is excluded from these comprehensive arrangements – despite the fact the Bill was specifically proposed to simply the planning development and regulation systems for fish farming.

Under Section 54 of the Bill the planning development of fish farms will continue to be under the Town and Country Planning Act 1997 and under the planning development powers of the Local Authorities. However, where individual Local Authorities do not wish to maintain development powers for fish farming, responsibility will revert to the Scottish Government (Marine Scotland) and operate under the marine licensing system. These proposals will have three main consequences:

The aquaculture industry will continue to have to suffer from the failings of the present planning development and regulatory system, with its divided responsibilities and multi-agency complexities.

Immediately or over time, as Local Authorities choose, the aquaculture industry will be faced with two fundamentally different planning development and regulatory systems operating side by side, in some cases within a single Marine Region.

Where there are competing or confliction interests for use of a single marine site the ‘competing interests’ will be divided between the responsibilities of separate bodies, the Scottish Government (Marine Scotland) and the relevant Local Authority.

Suggested alternative approach

We can find no argument which logically leads to the present proposals under Section 54 of the Bill. The Marine Licensing arrangements outlined in Part 3 of the Bill fully recognise the need for local democratic accountability. However, if the Scottish Government feels that it is expedient to go beyond that provision, specifically in respect of fish farming, the logical solution is

  • To order that marine fish farming will no longer be ‘development’ for the purposes of the Town and Country Planning Act (1997).

  • To establish the proposed activity-based marine licensing system for fish farming under the Scottish Government (Marine Scotland), bringing fish farming into the same legislative framework as all other marine activities;

  • To devolve responsibility for the marine licensing of fish farms from Scottish Government (Marine Scotland) to those Local Authorities wishing to allocate local resources to the task.

Taking this approach, marine licensing, including for fish farms, would be established as the universal approach as soon as the Marine Bill came into power (with whatever transitional arrangements that would be required). LAs would be required to adopt exactly the same marine licensing system for fish farms as adopted by Scottish Government (Marine Scotland). A single, simplified activity licensing system would be introduced across all the proposed Marine Regions. Moreover, this would be a tried and tested approach since similar arrangements operated satisfactorily in Shetland and Orkney prior to the Town and Country Planning Marine Fish Farming (Scotland) Order 2007.

Marine regions and regional planning

5.1 We have substantial concerns about the lack of structure in the proposals for the Marine Regional Planning under Section 8 of the Bill. The proposed arrangements seem certain to create variability and inconsistency in approach and in the objectives between Marine Regions. We believe this planning activity, which has huge strategic implications to the sustainable growth of the Scottish economy, both at the macro-economic and local levels, requires clear focus and specialist and fully resourced leadership. Under our suggested alternative approach we believe that these requirements can best be ensured if the leadership function is provided by Marine Scotland. We therefore strongly recommend that Section 8 of the Bill should be modified accordingly.

Marine licensing for aquaculture

The Marine (Scotland) Bill does not contain proposals on the detail of marine licences for fish farms; we assume these will be dealt with either through secondary legislation or Scottish Government administrative action. The salmon farming industry has clear views about the design of the licence system. The approach must embrace:

Joint and separate permission to produce aquaculture products in Scottish waters and to produce aquaculture products at specific sites.

Permanent licensing (unlimited by time) of the capacity to produce aquaculture products.

Scope to maintain locations/sites for routine fallowing and management operations and for strategic development purposes, to allow the relocation of active production capacity from one site to another.

Permitted development rights to modify the configuration of sites within the limits of overall production consents to allow implementation of new technology and management approaches at specific locations.

Scottish Salmon Producers’ Organisation, June 2009

SUBMISSION FROM THE SCOTTISH SEA ANGLING CONSERVATION NETWORK

The Scottish Sea Angling Conservation Network (SSACN) welcomes the opportunity to attend the meeting of the Committee at Stage I of the Marine (Scotland) Bill, especially as we believe that the interests of the Scottish recreational sea angling sector have received less than satisfactory consideration in the past.

We are also grateful for the opportunity to make this written submission. Though we shall make some general comments relating to the Bill, we shall take this opportunity to highlight concerns and issues we have specifically relating to the impact the Bill may have on recreational sea angling.

Background

Recreational sea angling (RSA) is a selective, environmentally friendly and low-impact activity; it is the # 1 coastal recreation activity in Scotland and is of great social and economic importance. Scotland was once a major European sea angling centre based around species that were not readily available elsewhere in the British Isles or Europe, unfortunately many stocks have been depleted to the point where this is no longer true.

However, over 100000 anglers still regularly take part in the sport and contribute £150+ million/yr to the Scottish economy, a high percentage of which is associated with tourism.

We believe that if the relevant stocks and habitats were to be regenerated, Scotland could once again become a premier sea angling destination; this in turn would facilitate the regeneration of some of the thousands of jobs which have been lost in dependent businesses and communities.

Summary

Our response is focussed primarily on Parts 2 and 4— Marine Planning and Marine Protection and Enhancement and how consistent they are with the Government’s overall strategic objectives, especially in the areas of ’Wealthier and Fairer’ and ‘Greener’.

Our primary concerns following discussions during the Sustainable Seas Task Force, ‘roadshow’ consultation meetings and the various documents are

  • That any operational framework are sensible, proportionate, underpinned by scientific assessment and to the benefit all stakeholders; they should be open, inclusive and structured to meet the demands of today

  • There needs to greater clarity in the make-up, membership and powers of the Scottish Marine Regions (SMRs) and a greater focus on ensuring the interests of local communities and recreational users of the marine environment are taken into account.

  • Commercial, recreational, conservation, tourism bodies and communities interested in fishery resources are essentially all looking for stocks which are readily available at safe biological levels — yet all but the former are denied input to fisheries management.

  • In the UK Marine Bill, their Sea Fisheries Committees have been replaced by Inshore Fisheries and Conservation Authorities with mandated membership for conservation and sea angling bodies. This should be reflected in Scotland’s Marine Bill.

  • The Government is missing the chance to increase the revenues which underpin the economic foundations of many coastal communities by not recognising and including the needs of the marine recreational and tourism sectors.

  • The Bill needs to focus more on regeneration rather than sustainable exploitation - twenty species of fish once common in Scottish waters have become so depleted in the last two decades that many are now considered locally extinct in several areas.

  • As the marine ecosystem is severely degraded in many places, Angling Regeneration Centres would offer an opportunity to combine local management, conservation and regeneration to protect and enhance biodiversity whilst increasing economic activity.

  • There can be no justification for management which is not open, transparent and inclusive.

This will require a ‘sea change’ to the current attitudes and practices.

Part 2 - National and regional marine plans

According to the Policy Memorandum, the Bill will provide powers for Ministers to create Scottish Marine Regions (SMR) and at a local level, implement marine planning through a partnership comprising local stakeholders or a public authority — thus increasing local transparency and accountability.

One of the major difficulties in responding to this section is that in the various presentations regarding the Marine Bill we have attended, no one has been able to clearly articulate

  • How the boundaries of SMRs will be determined.

  • The specific roles of a SMR.

  • The proposed relationships and legislative responsibilities between the SMRs and the many bodies / functions involved in the marine environment — Integrated Coastal Zone Management (ICZM), Scottish Sustainable Marine Environment (SSMEI), Inshore Fisheries Groups (IFGs), The Crown Estate, SNH, Local, Regional and National governments etc.

These will need to be clarified and well documented, but if the above goals are to be achieved

  • The Marine Bill should not seek to exploit our seas purely for commercial gain, it should deliver management structures which ensure its conservation and where necessary, its regeneration.

  • The membership of an SMR must be representative of ALL local socio-economic activity rather than just reflecting the interests of dominant commercial activities.

  • Overall ‘Best Value’ should be the objective.

  • There will be a need for consistency, especially in areas bordered by many regional authorities and/or across national boundaries e.g.: The Clyde and The Solway.

  • There should be no ‘Presumption of use’ in any plans, the planning system should determine what and where activities can occur taking into account all the different interests.

  • There should be a mechanism to appeal on the competence of the plan itself rather than just decisions made on the basis of the plan

All plans should he targeted at conserving / regenerating a healthy marine environment, therefore their objectives should be overarching and SMART (specific, measurable, achievable, realistic and timely) to ensure meaningful measurement of their progress.

Our experiences to date when trying to get recreational sea angling issues addressed, especially those pertaining to conservation matters, have not been very rewarding — provisions within the Bill need to ensure the SMRs take a broader view of the wider recreational, tourism, conservation and local community issues.

As expressed in the policy memorandum, Scotland has a strong coastal community, with approximately a fifth of the Scottish population living within one kilometre of the sea.

The importance of the marine environment to ALL these communities and the need to involve them in marine decision making, must be paramount; especially in our specific case, for the thousands of sea anglers as well as the businesses and communities which depend on them.

Part 4 — Marine protection and enhancement

When considered specifically from a conservation and recreational sea angling point of view, this is the area which causes us most concern, especially as in its response to the UK Marine Bill, the Scottish Government stated:

  • ‘The environmental status of most seas around Scotland is currently good or excellent’ and in this consultation it claims ‘the seas are generally healthy and biologically diverse’

This cannot be the case when three of the qualitative descriptors for determining good environmental status are

  • Biological diversity is maintained.

  • Populations of all commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock.

  • All elements of the marine food webs occur at normal abundance and diversity and levels capable of ensuring the long-term abundance and full reproductive capacity of the species.

and the near-shore fish stocks around our coasts have collapsed to the point where in the last two decades twenty species of fish once common in the waters around Scotland are now considez locally extinct in many areas. Protecting key habitats and species will play a vital role in improving the health of the marine environment, with this in mind the Bill should:

  • Unequivocally offer protection to all critically endangered marine species on the IUCN red list and Scotland’s biodiversity strategy list.

  • Propose a complete a complete science-based review of all threatened stocks every five years and an annual review of whether new marine species need to be added.

Marine Protected Areas (MPAs) can play a significant part in try to help ensure the biodiversity of our waters, but we are concerned that:

  • An MPA must be science driven and have a specific purpose eg: protecting an exceptionally biologically diverse area; protecting the feeding, spawning, mating and migration sites for mobile species; protecting nationally important marine areas etc.

  • The determination of an MPA should follow an open and transparent process with meaningful involvement for all communities affected in order to enable the broadest cross section of views and issues are taken into account.

  • Management decisions should be based on the REAL costs and benefits (environmental, social, and economic) but be driven by conservation principles.

  • The goals and objectives of an MPA must be clearly stated.

  • ‘Blanket bans’ should not be introduced unless a specific goal or objective requires it.

Throughout the whole process, sustainable exploitation has seemed to be the end goal, this should not be the answer, we need to REGENERATE the biodiversity our inshore waters, this will require a ‘sea change’ in the current attitudes and approaches to the management of the COMMON RESOURCE which is the marine environment.

Section 58 of the Bill enables Scottish Ministers to designate MPAs on the basis of nature conservation, demonstration and research, or historic marine protected area.

One additional area which could provide a major opportunity would be to make provision for the creation of Angling Regeneration MPAs — areas where recreationally important species require protection from excessive exploitation and where the emphasis is on the regeneration of stocks through conservation and education.

An Angling Regeneration MPA would be set aside for sea angling, artisanal fishing methods and non-destructive commercial fishing practices. This would provide a safe haven for juvenile fish stocks in particular and would allow the habitats, bethnic communities and fauna to recover.

Depleted fish stocks typically regenerate by two to three times within three years of protection.

The designation of this kind of MPA could be very flexible eg: it could consist of several areas within a coastal feature such as a Firth, or it could encompass the entire feature itself. It could also be part of a bigger MPA.

In Conclusion

In recent years there has been a consistent demand for a change in the management of Scotland’s seas that will:

  • Be open, transparent, inclusive and accessible.

  • Deliver better stewardship.

  • Provide increased opportunities for economic growth.

  • Focus on regeneration and not just sustainable exploitation

  • Preserve the marine environment for future generations.

This was initially highlighted by the Environment and Rural Development Committee (ERDC) of the Scottish Parliament following its inquiry into the Marine Environment in 2007 which identified the need for a new system of marine planning, a more integrated regulatory system for marine activities, the need for marine protected areas, further research and for a marine management organisation to simplify governance and not add to bureaucracy.

SSACN, along with other marine stakeholders, has expended a substantial amount of effort and energy in the Advisory Group on Marine and Coastal Strategy (AGMACS) and Sustainable Seas Task Force, groups which were formed to provide advice to Ministers on taking those recommendations forward.

The Government has also made a very serious investment in communicating the outcomes of those initiatives to a very broad spectrum of stakeholders.

There is now a very high expectation amongst the 100,000+ sea anglers and a very broad range of other recreational, tourism and conservation related groups, as well as many of their dependent communities, that change will happen and that the old ‘closed shop’ style of marine management will be replaced by one that is more open, transparent and inclusive.

SSACN

June 2009

SUBMISSION FROM HIGHLAND COUNCIL, 12 June 2009

Introduction

Highland Council welcomes the opportunity to contribute written evidence to the Rural Affairs and Environment Committee scrutiny of the Marine (Scotland) Bill. The Council has long campaigned for a statutory system of marine planning in Scotland and so, while recognising that much of the detail remains to be finalised, welcomes the Bill. The Council has contributed to the work of various Ministerial working groups on the marine environment, most recently the Sustainable Seas Task Force. The Council contributed comprehensively to the “Sustainable Seas for All” consultation.

Marine Planning

Highland Council welcomed the acknowledgement of a leading role for local authorities in delivering integrated management at the Scottish Marine Region level. Similarly the Council supports the complementary relationship proposed for Marine Scotland and local authorities. Highland Council has experience of marine spatial planning and coastal zone management, planning and looks forward to working closely with Marine Scotland in the future.

It is difficult to comment on specifics when there are so few of them contained within the general enabling powers proposed within the draft Bill. However the Council supports the development of a National Marine Plan by Marine Scotland and Regional Marine Plans, delivered and implemented via Regional Marine Partnerships. Regional marine plans should be fully integrated so that all activities, including inshore fishing (via IFGs) operate within the terms of the plan.

Given the length and characteristics of the coastline involved, Highland Council may be best served by four Regional Marine Partnerships. These could plan for the Moray Firth, Pentland Firth, North West Highland and South West Highland.

While the Council has some concerns about the timescales proposed for and the costs allocated to the development, implementation and review of Regional Marine Plans, the Council very much wishes to move these forward and seeks early dialogue with Marine Scotland on how this can be achieved.

Written comments have been provided separately to the Parliament’s Finance Committee

Licensing

The Council agrees that marine Scotland should be responsible for the delivery of a marine licencing system, but not necessarily that licences should be granted by Marine Scotland. Such a move would work against stakeholder involvement and ICZM, and would compromise links between local policy and implementation. Highland Council believes that licences should be granted locally by Marine Regional Partnerships (lead partners) working closely with local authority planners, who would handle development consent applications.

Applications for energy generation installations in the nearshore area should also be subject to local authority planning controls.

Planning for aquaculture

With regard to where control for aquaculture should lie, the consultation document leading up to the draft Bill made a very good case (paragraphs 212, 213 and 214) for the retention of this role by local authorities and this is strongly supported by the Highland Council. The very good reasons for transferring responsibility for fish farm developments from the Crown Estate Commissioners to local authorities remain valid today. For clarity, responsibility for the control of aquaculture should remain with local authorities for the following reasons:

  • Retains local democratic control

  • Retains policy and management linkage between on land and coastal development – straddling developments

  • Recognises the impacts on local communities that aquaculture developments can have and the importance of community views

  • Decisions remain the responsibility of locally accountable elected members

  • Local authorities already have responsibilities and experience in spatial planning, coastal protection and flood prevention.

In addition local authorities are now integrating their role as planning authority for aquaculture with their developing expertise in coastal and marine planning, and with mainstream development management. Those in the Highlands and Islands are probably ahead in this area but others also have experience of working with coastal partnerships and the SSMEI project.

With regard to aquaculture development consents, the Council considers they should be dealt with by local authorities, for the reasons set out above. Consistency can be ensured by having in place a robust national marine planning framework and guidance which sets out objectives and the approach to be adopted. Integration should be addressed by the close working and complementary approach envisaged for local authorities and Marine Scotland.

Highland Council understands the need to streamline the development consents process for aquaculture and that this is important in terms of the cost and time taken to determine applications. However there is a need to maintain strong links to local communities, local decision making and consultation. These are also important factors in the sustainable development of the aquaculture sector.

Given wider responsibilities for the environment and competition for space in the coastal marine environment, there is a limit to how “simple” the process can be made.

Highland Council therefore welcomes the fact that the draft Bill consolidates the local authority role as aquaculture planning authority.

Highland Council

12 June 2009

SUBMISSION BY HIGHLAND COUNCIL, 17 June 2009

Introduction

Highland Council has previously (12th June 09) submitted written evidence to the Scottish Parliaments Rural Affairs and Environment Committee scrutiny of the draft Marine (Scotland) Bill. The submission that follows should be read in conjunction with that made on 12th June.

Highland Council also submitted evidence to the Parliaments Finance Committee, which is scrutinising the Financial Memorandum accompanying the draft Bill. Evidence to the Finance Committee was submitted on 27th May 09.

The following submission arises from a meeting of Highland Councils Land, Environment and Sustainability Strategy Group on 17th June 09, when the Marine (Scotland) Bill was considered.

The Crown Estate

Highland Council welcomes the draft Bills intention to bind the Crown Estate within the terms of the Bill and marine planning in Scotland. However the Council does not feel that the Bill goes far enough.

Chapter 1 of the Sustainable Seas consultation (“Scotland’s Seas – Scotland’s decisions” and “Scotland’s seas – the case for devolution”) sets out the arguments for further devolution of responsibilities within the seas around Scotland. The Highland Council supports these arguments and is very disappointed that there is no intention to pursue devolution of the administration and management of the seabed and foreshore forming part of the Crown Estate in Scotland.

The Crown Estates is barely mentioned within the original consultation document despite having a regulatory role in terms of the issue of licences and consents, which at least offer a further hurdle to potential developers.

A good and simple example of this last point is in respect of moorings. The only regulation of moorings is presently via navigational controls (Section 34 Coastal Protection Act), other than Crown Estate leases. The Crown Estate Commissioners are therefore de-facto regulators. As the Commissioners are now purchasing marinas, a conflict of interest exists in a similar way as occurred previously with fish farms. The regulation and consenting of moorings should be dealt with by Marine Scotland via marine regional planning partnerships and ICZM.

Each of the arguments presented in relation to the further devolution of nature conservation applies equally to the Scottish marine estate. The Scottish marine estate could become the responsibility of Marine Scotland as marine planner and champion, with a key responsibility for securing appropriate conditions for renewable energy investment, engaging stakeholders and local communities.

The Calman Commission has recently reported on opportunities for strengthening the devolution settlement. While concluding that the legislative competence of the Crown Estate in Scotland should not be devolved, recommendation 5.8 states that:

“The Secretary of State for Scotland should, in consultation with Scottish Ministers, more actively exercise his powers of direction under the Crown Estate Act 1961 and, having consulted Scottish Ministers, should give consideration to whether such direction is required immediately”

Highland Council believes that the recommended consultation should take place as a matter of urgency to ensure that the administration and management of the Crown Estate in Scotland is fully integrated with Marine Scotland and the national/regional marine planning process.

Marine Planning

Marine planning arising from the Marine (Scotland) Bill should be ecosystem based and fully integrated. It should include planning for inshore fisheries, renewable energy development, and oil and gas developments.

Streamlining the consents process

Highland Council fully supports the draft Bills aim to streamline the marine consents process. However, the Council is concerned that the opportunity has not been taken to integrate the role of SEPA within the streamlined process proposed. The Councils earlier comments on devolved licencing to regional partnership leads remain valid. A streamlined process delivered locally is the Councils aim.

Planning for aquaculture

With reference to the Councils previous submission, the Council will not delegate its role as planning authority for aquaculture to Marine Scotland. The Council considers the retention of local accountability as vital to the future sustainability of aquaculture in Scotland.

Seals

Proposals to simplify seal management legislation are welcomed by the Council. The resources required for the implementation and monitoring of seal management plans is cause for concern. Councillors are further concerned that, with regard to section 100 of the Bill, scientific information supporting the management of seals should be robust enough to allow the specification of numbers to be taken in order to ensure that seal damage and predation can be controlled.

Highland Council, 17 June 09

SUBMISSION FROM SCOTTISH NATURAL HERITAGE

SNH is the Government agency charged with the conservation and enhancement of Scotland’s habitats, wildlife and landscapes, with facilitating their enjoyment by the public and with increasing the general level of understanding about this resource. Its statutory purposes also include ensuring that the natural heritage is used sustainably.

We are supportive of provisions in the Marine (Scotland) Bill. In our view they represent a turning point in the management of Scotland’s seas. They offer the prospect of a more integrated, forward-looking approach to management that takes proper account of nature conservation alongside other uses of the sea. They raise the prospect of recovery for features that are under threat, and provide the basis for a rational approach that founds decisions about future use on the condition of marine ecosystems. The following comments are intended to help strengthen the role of the Bill to sustain Scotland's natural heritage.

Part 2 Marine Planning

The introduction of a marine planning system is one of the most far-reaching elements of the new proposals. A planning system should be able to integrate the current sectoral approaches to marine management. It should be able to guide the spatial distribution of activities and ensure they occur within areas most appropriate for them. It should be able to take a strategic approach to the delivery of multiple benefits from Scotland's seas, and manage cumulative impacts. Through its links with broader management it should complement the role of Marine Protected Areas (MPAs).

In our view a proactive and planned approach to the management of marine resources has potential benefits for the whole of Scotland's waters. Such a marine planning system would benefit from a statutory purpose clearly founded on the principles of sustainable development and environmental protection. In the absence of any reference to the tier of planning linking Scotland with the UK and internationally, in our view the Bill should make provision to ensure compliance at all times with international obligations such as the EU Marine Strategy Framework Directive, and to contribute to high level objectives already agreed to by Scottish Ministers, and to conform to the National Planning Framework.

We support provisions to set out national marine objectives, as a means to set out overall strategic goals for maritime management which integrate social, environmental and economic objectives to secure “multiple benefits”. We envisage an important role for marine ecosystem objectives underpinning economic, social and environmental priorities, and setting out the environmental limits within which sustainable development can continue to take place. Getting the balance of these objectives right in the planning system and associated licensing decisions will play an important part in ensuring that we fulfil our obligations towards achieving Good Environmental Status under the EU Marine Strategy Framework Directive.

Part 3 Marine Licensing

We support the intention of streamlining the current licensing system and in particular to merge the licensing functions under Food and Environment Protection Act Part II and Coastal Protection Act Part II and to introduce a new marine licence which focuses effort on those developments considered to be likely to have the greatest risk associated with them in terms of environmental impact. We also support the provisions under Part 2 for public authorities to take decisions in accordance with the relevant marine plans. To realise the potential benefits one of the key factors will be the determination of thresholds. The system needs to be able to differentiate spatially and take account of cumulative effects. We know this to be very difficult in practice

The Bill currently makes provision for a statutory consultation period for licence applications relating to MPAs, but not in other locations. Without this there is a concern that environmental interests will not be able to make their views known.

In our view the landscapes of Scotland’s coasts and inshore waters need to be considered under ‘protecting the environment’ when determining licence applications. It would be useful to clarify whether the definition of ‘environment’ within the Bill includes landscapes.

Part 4 Marine Protection and Enhancement: the Scottish Marine Protection Area

We welcome the new proposals for marine nature conservation. The absence of any mechanism specifically for spatial protection of important marine natural heritage features, beyond the Natura network, has contributed to the current situation where a number of Scottish habitats and species are threatened and declining. The new MPA power is potentially one of the most significant benefits likely to arise from the Bill.

Scottish Ministers have international commitments to develop a network of MPAs. International experience in managing MPAs shows that they are most effective when managed as part a network, contributing to a wider ecosystem approach. In the absence of a duty to designate the network, in our view it would be useful for the Bill to make reference to developing the network, perhaps through requirement to have regard to the extent to which individual MPAs would contribute to the overall network.

Currently the focus of the Bill in conserving marine flora and fauna appears to be on those species considered to be rare and threatened. In our view conservation value is a more complex assessment in addition to this. It also needs to take account of factors such as the degree to which a feature is distinctively Scottish, or whether Scotland is considered to be a stronghold for it, or it provides ecological resources e.g. places for feeding, breeding, resting, nurseries, juveniles and/or spawning, or sediment supply.

The new provisions for managing MPAs, such as the proposed Marine Conservation Orders, are helpful and have built on our experience to date of managing terrestrial and marine protected areas. Two additional elements would enable SNH to support those making decisions relating to the planning and management of MPAs more effectively. These would be the requirement to provide formal advice on operations for MPAs alongside the conservation objectives and a pre-consultation stage to assist public authorities in determining whether or not a proposal is insignificant in relation to the protected features of a MPA.

Integration of Fisheries

Out of all marine uses, fisheries is one of the most pervasive and affects all aspects of marine management. In our view it is crucial that fisheries plans or strategies (including those developed by the Inshore Fisheries Groups) take account of plans developed under the new marine planning system and vice-versa. Currently, the relationship between the proposed Marine Planning Partnerships and Inshore Fisheries Groups is unclear and in the wider context in relation to management under the Common Fisheries Policy. The way in which Scotland will give effect to fishery-related elements of Marine Ecosystem Objectives also needs a certain amount of thought. Overall, it remains unclear how the new framework for marine management in Scotland will integrate with relevant aspects of the management of the fishery sector.

SNH

4 June 2009

SUBMISSION FROM SCOTTISH ENVIRONMENT PROTECTION AGENCY

Thank you for providing the Scottish Environment Protection Agency (SEPA) with the opportunity to comment on the provisions of the above Bill in relation to its impact on Scotland.

SEPA welcomes the proposals set out in the Bill to streamline regulation in the marine environment, simplify the licensing system and introduce a system of marine planning. SEPA also looks forward to continuing to work closely with the new Marine Scotland, in order to protect the marine environment, without damaging the fundamental environmental safeguards.

SEPA is the competent authority in Scotland for regulation and monitoring under several relevant EC Directives, including the Water Framework Directive (2000/60/EC) (WFD), Bathing Waters Directive (2006/7/EC), Shellfish Waters Directive (79/923/EEC), Nitrates Directive (91/676/EEC), the Urban Waste Water Treatment Directive (91/271/EEC) and the Integrated Pollution Prevention and Control Directive (96/61/EC). SEPA is also a competent authority for the Habitats Directive (92/43/EEC) and is responsible for coastal flood risk assessment. Also of relevance to licensing activities in the marine environment is the Radioactive Substances Act 1993 under which SEPA regulates the keeping, use and disposal of radioactive substances in relation to offshore installations and radioactive discharges to the marine environment from land based facilities. Our wide remit puts us in a good position to contribute towards assisting the delivery of the objectives of this Bill.

SEPA’s current environmental control regime is driven principally by the Water Environment and Water Services (Scotland) Act 2003 (WEWS), which implemented the WFD in Scotland. Under this legislation and the subsisidiary Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR), SEPA’s responsibilities include:

co-ordinating a monitoring programme and classifying coastal and estuarine waters;

delivering a participatory environmental planning system which sets environmental objectives and measures to allow their delivery;

authorising discharges and abstractions in freshwater and marine waters and engineering works in freshwaters. It does not cover engineering works in tidal waters, which are currently controlled by the Food and Environment Protection Act 1985 (FEPA).

Marine Planning

SEPA wishes to work closely with Marine Scotland to offer early input to the development of the proposed marine planning areas; building on experience gained during the recent delivery of draft River Basin Management Plans (RBMP). This has involved close working with local authorities and other stakeholders across Scotland for the two RBMPs and the ten associated Area Advisory Groups, and additionally with the Environment Agency in relation to the Solway Tweed RBMP. The RBMPs, which include the inshore marine environment out to three nautical miles, are a requirement of WFD (and transposed through WEWS). The current ten Area Advisory Group boundaries could, where appropriate and subject to the local geography, be altered slightly to dovetail with marine planning areas.

Marine Science and Data

SEPA recognises the need for a Marine Science strategy for Scotland and looks forward to working closely with Marine Scotland on the development and implementation of this strategy, and contributing to discussions on the research requirements to close identified knowledge gaps. This will build on co-operative work and the excellent working relationships that have already been established between SEPA Marine Science staff and former Fisheries Research Services (FRS) and Scottish Government staff, who are now part of Marine Scotland. Current and on-going co-operative work includes strategy and survey planning, monitoring and environmental assessment for the UK Marine Monitoring and Assessment Strategy (UKMMAS), to fulfil the Scottish and UK vision for clean, safe, healthy, biologically diverse and productive seas. On a practical level, this already involves sharing of survey vessels, water samples, fish and data for the clean seas environment monitoring programme, to provide information on the status and trends in waters, sediment and biota from coastal and estuarine waters for the Water Framework and Marine Strategy Framework Directives, and for OSPAR. SEPA looks forward to continuing to work closely with Marine Scotland to ensure that the marine environment is monitored and assessed in the most efficient way possible. With 95% of the contaminants in the sea derived from land-based sources regulated by SEPA, it makes sense for SEPA to focus on inshore waters and for Marine Scotland to focus on offshore waters.

Marine Licensing

The Marine (Scotland) Bill introduces measures to simplify and streamline the process of getting a licence, with Marine Scotland being responsible for licensing activities within both inshore and offshore waters. SEPA supports the intention of this Bill in improving and streamlining the application process from the applicant’s perspective, but would need to retain the ability to determine and issue authorisations related to Pollution Prevention and Control (Scotland) Regulations 2000 (PPC) and the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR). Whilst the provisions of the Bill set out a broad description of licensable marine activities (s17), SEPA recognises and welcomes the intention that the licensing role of Marine Scotland is limited to the authorisation of activities currently covered by the provisions of Part II of the Food and Environment Protection Act 1985 (FEPA) and the Coast Protection Act 1949 (CPA). The aim of consolidating the licensing requirements for developments where permits are currently required under FEPA and CPA is a clear benefit in terms of streamlining and reducing bureaucracy and recognises a synergy that often exists between these licensing regimes. SEPA specifically welcomes the inclusion in the Bill of licensing of all types of dredging, and that this is licensed by the one organisation, Marine Scotland.

SEPA has complementary, duties, functions and interests to those discussed in the Bill in terms of the licensing role for discharges under Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR). In a similar spirit to the bureaucracy reducing themes engendered by the Bill, SEPA has for many years been engaged in discussions with partner agencies to play our part in continually evolving our regulatory system into an increasingly streamlined, transparent and consistent marine licensing system. These steps have been taken in particular in relation to the roles of SEPA as a consultee and agency licensing the emissions from the aquaculture industry. This process has been informed by sound science and has been undertaken while maintaining an integrated approach to river basin management to ensure Scottish coastal waters meet the requirements of WFD.

The proposed Marine Bill represents a considerable improvement in the licensing regime for activities in the marine environment and SEPA endorses the inclusion of an element of proportionality in the proposals. The current proposals allow for different levels of authorisations where smaller scale proposals with a lower environmental risk may be subject to a “registration” whereas higher risk activities will be brought under the full licensing regime. This in some senses mimics the regime in force under CAR; however there is no proposal for a third lower tier of activities, dealt with by a system of defined “General Binding Rules”. The inclusion of General Binding Rules (similar to those already in place under the WEWS and CAR) may offer further benefits in terms of a fully proportionate and environmental risk based regulatory scheme, effectively ensuring that de minimis activities are subject to minimal administrative control but are still subject to statutory good practice requirements.

SEPA maintains the position that the regulation, licensing and monitoring of the current array of controlled activities in fresh, transitional and marine waters as defined in WEWS should remain with SEPA. In particular the regulation, licensing and monitoring of the aquaculture industry should remain within the agency’s duties under the mature and well organised policy framework developed under WEWS and CAR. SEPA expects to work closely with Marine Scotland to protect the marine environment, whilst still carrying out its duties as defined under WEWS.

During the drafting of the Bill, arguments in favour and against the removal of the regulation of this single industrial sector from SEPA into the remit of Marine Scotland were proposed but there were, and are many good reasons why such a change should not be considered. Giving the management of fish farm effluent discharges to the new agency would still leave SEPA with the role of regulating waste disposal, fish processing, oil storage and other areas of the marine aquaculture industry along with the regulation of the entire freshwater aquaculture sector. In essence this would lead to this industry gaining a regulator rather than benefitting from the streamlining of agencies and processes. The proposals as set out in the Bill and discussed in the accompanying guidance documentation, where no change to the CAR regime is suggested, are therefore heartily welcomed by SEPA. The retention of the status quo will ensure the maintenance of simple, co-ordinated and streamlined regulatory processes for aquatic discharges from the marine aquaculture industry, as well as aquatic emissions from the freshwater aquaculture sector, emissions to air, land and water from processing plants and other minor environmental outputs from the industry.

The explanatory notes to the proposed Bill (para 245-256) may be interpreted as alluding to an administrative “one-stop-shop” where applicants make an application for a number of individual permits to a single agency with each regulator dealing with a part of the application. SEPA supports any simplification to the current application process from the perspective of the applicant, for licensable activities in the marine environment. The role and remit of Marine Scotland would allow for better co-ordination of the different licence application processes to which applicants are required to apply. SEPA would see this as a development of the Scotland’s Environmental and Rural Services (SEARS) programme, which SEPA strongly supports, and which delivers an integrated service in the rural environment. SEPA would welcome an exploration of a similar type of approach with Marine Scotland and other partners, for the delivery of services in the marine environment.

In summary, SEPA is supportive of the Scottish Marine Bill. In particular, SEPA supports the approach of a proportionate regulatory regime to protect the marine environment, using licences and registrations. Also, that the introduction of Marine Plans are able to build and dovetail into the ten Area Advisory Groups which are used within the River Basin Management Planning process. SEPA would also recommend that the regulation, licensing and monitoring of the aquaculture industry should remain within SEPA’s duties under the mature and well organised policy framework developed under WEWS and CAR. Finally, SEPA is willing to assist in streamlining bureaucracy and supports the flexibility which the proposed legislation provides in order to make this happen, whilst ensuring that the fundamental environmental safeguards are retained.

As a public body committed to openness and transparency, SEPA feels it is appropriate that this response be placed on the public record. If you require further clarification on any aspect of this correspondence, please contact Les Watson, Water Policy Unit Manager at the address shown above.

SEPA

3 June 2009

Wednesday 10 June 2009 (16th meeting, session 3 2009) – Oral Evidence

10 June 2009 (16th meeting, session 3 (2009)) – Supplementary Written Evidence

SUPPLEMENTARY SUBMISSION FROM SCOTTISH ENVIRONMENT LINK

Thank you for giving Scottish Environment LINK the opportunity to give oral evidence on the Marine (Scotland) Bill last week (Wed 10 June). Time prevented the issue of Marine Protected Areas (MPAs) being discussed during our evidence session, but your Committee discussed this with both the Scottish Government and SNH. Therefore, it may be useful for me to reiterate our views on MPAs and, more specifically, the type and level of consultation we believe is appropriate for the two distinct stages of first selecting and then managing a MPA.

The decision to designate a MPA must be made on scientific criteria alone. If an area meets these criteria, Scottish Ministers must proceed with designation. The only flexibility, as stipulated in the Bill, is in areas where the desirability of designating two or more areas is equal. In such scenarios, Scottish Ministers may have regard to social or economic consequences of designation in making their decision of where - not whether - to designate.

Ensuring that sites are selected using scientific criteria alone does not mean that socio-economic concerns are ignored – it means they are considered at the appropriate stage i.e. when making management decisions. Designating an area does not prevent any activity or interfere with any rights – these effects are a result of the management decisions about what does or does not happen in the area. It is in the management arrangements that socio-economic concerns should be addressed by creating mechanisms to ensure the appropriate tests are met within the context of balancing public interests.

In order to prevent misunderstandings and to manage the expectations of stakeholders, it is vital that the consultation process clearly sets out the range of options available at both the designation and management decision stages of creating MPAs.

It must be made clear that if an area meets scientific selection criteria for designation, then stakeholders may be asked to present further scientific information, for example on the designating feature. It is misleading and unfair to suggest to stakeholders that socio-economic issues of importance to them may influence the selection of a site, when this is simply not the case in Natura sites or, as currently specified in the Marine (Scotland) Bill, new national protected area models.

SE Link

17 June 2009

SUPPLEMENTARY SUBMISSION FROM SCOTTISH FISHERMEN’S FEDERATION

The Convener of the Committee invited those giving evidence to the Committee on 10 June 2009 to make, if so advised, a subsequent submission in writing. The Scottish Fishermen’s Federation wishes to take advantage of that invitation to emphasise certain matters which were discussed, and some that were not. Its submission follows by reference to the Parts and Sections of the Bill.

The Federation expresses the hope that the Committee will seek to take further evidence from it later in the process. The importance of this measure to each fisherman in Scotland cannot be over emphasised. It is essential that not only is the effect of the proposed legislation clearly understood, but also is brought into effect in a form which so far is possible can be fully supported by all those having a legitimate interest in it.

Part Section Subject Comment

2

Marine Planning

3 Marine Plan Peter Peacock MSP probed the connection between a Marine Plan and the management of fishing activity. The SFF in his evidence suggested that the management of fishing activity is a matter for the Common Fisheries Policy. It wishes to emphasise, in saying that, that it understands that the Marine Plan will have no different an effect upon fishing activity than any other activity which the Marine Plan pretends to regulate. So where fishing activity demands to be regulated by the Plan, for example as a consequence of a Marine Conservation Order restricting fishing activity within a Marine Protected Area, it will be. The Marine Plan however will not regulate fisheries management nor technical conservation matters, generally. There is no intention in the drafting, as SFF sees it, that the plan would regulate such matters.
  8 Delegation SFF agrees strongly with the concept of delegation to Scottish Marine Regions. As the Committee itself discerned, it is important that there is consistency across the regions in relation to policy even if, given different circumstances, regionally, In those circumstances, consistency is best achieved by Marine Scotland, being the agent for the policymaker, chairing each of the policy partnerships. Apart from achieving consistency, this arrangement should achieve proper funding and resourcing.SFF is also clear that the partnerships should not be dominated by any one faction. Its experience of marine planning is that the most effective forum is where all participants understand that they are, and act as an equal of each of the others.

3

Marine Licensing

18/29 Application and Appeal The draft has shown no appreciation of the difference between terrestrial and marine consenting. The argument was put at the hearing, for statutory pre-consultation discussions with affected parties and a third-party right of appeal. The right of appeal should be restricted to those with an economic interest in the planning unit. The reason for the right of appeal is that the grant of a licence can have the effect of depriving affected third parties of an income or worse. The effect also is to restrict the public rights of navigation and fishing. These important public rights require to be protected by a tribunal which is independent of the regulators.
  25 Environmental Impact While an activity may be judged to be of minimal environmental effect or, because it has a discharge consent, it does not need a marine consent, the mechanical process involved in implementing the permission may interfere physically with marine activities. This possibility is all too real and has occurred. Consequently, it is important to reserve a right to subject an activity which otherwise would be registrable only, to the licensing procedure, where it might have the effect of interfering with a third-party activity..
  37 -- 41 Monetary Penalties The system proposed for administrative penalties is unacceptable. Those against whom a breach of duty is alleged must have the alternative of a judicial process to having to accept an administrative penalty.
  54 Aquaculture The purpose of the Act is to introduce, where competent, one system of marine consenting. To except marine fish farm planning, but only where a Local Authority wishes the right to continue to administer a terrestrial planning system, is beyond any justification. Indeed it is noted that none is given. The subsuming of marine fish farm planning into the marine system does not diminish the influence of the relevant Local Authority, as it will be firmly involved in the marine planning partnership. What it would do however is to achieve consistency in the application of the relevant planning rules.It should be noted that the SFF view is one which is held across the marine user spectrum and in particular by those representing aquaculture interests.

4

Marine Protection

58 MPAs It should be noted that there is neither Parliamentary procedure nor any independent appeals system which can challenge the decision of a Minister to designate an MPA. His answer is that the designation, in itself, does not imply any restriction. However it has the same effect as planning blight on land. If the Minister believes the test has been met for the designation there will inevitably be management required through the medium of a Marine Conservation Order. It is therefore a firm view of the SFF that designation should not be allowed to proceed without publication of the relevant MCO. It is also the view of the SFF that the Parliamentary procedure should be supported by a right of appeal being available to affected parties, to an independent tribunal.
  79   The Minister or his officials must be questioned before we get much older on the basis on which a hearing will be instructed. We cannot be expected to agree to a process prior to understanding what it will entail and more importantly how it will protect the rights of affected individuals.

Scottish Fishermen’s Federation

15 June 2009

SUPPLEMENTARY SUBMISSION FROM SCOTTISH SALMON PRODUCERS’ ORGANISATION, 11 June 2009

Introduction

Since its initiation in the 1970s aquaculture has developed into one of Scotland’s most important and successful rural industries, especially in the Highlands and Islands where the viability of many communities is sustained by the employment it provides. Scottish Government statistics5 show that the primary production of the aquaculture industry is valued at some £400m per annum made up of £382m for farmed salmon, £10m for rainbow, brown and sea trout, £2m for other species and £5m for shellfish. Aquaculture is Scotland’s single largest food exporting sector making up over half of the more than 50% of total food exports represented by fish and seafood products. Aquaculture creates about 1,500 direct jobs on farms and a further 4,700 in processing and manufacturing.

Scotland is amongst the world’s leading farmed salmon producers; whilst a smaller producer than some of its competitors, such as Norway, it has established an enviable international reputation for the high-quality of its products. Scottish salmon has been awarded EU Protected Geographical Indication (PGI) status in recognition of the distinctive characteristics of the product and the marine environment in which it is produced and the French Label Rouge accreditation which denotes superior quality. Backed by the an independently audited Code of Good Practice for production6, it has become an iconic market leader in the UK and internationally.

The UN Food and Agricultural Organisation (FAO) has highlighted that the world’s demand for fish cannot be met by the sea-catch industry and further development of aquaculture – which presently contributes almost 50 % of the fish consumed by man – is the only sustainable option for the future. This view has been reinforced at EU level – where over 60% of the seafood consumed is imported – by a new EU aquaculture strategy7, and it is a key consideration in the recent Green Paper on the reform of the Common Fisheries Policy8.

The need to further develop Scottish aquaculture was recognised in the Scottish Executive’s strategic framework for aquaculture in 20039 and has recently been re-stated by the Scottish Government’s revised and updated aquaculture strategy10. It has been estimated that the industry could grow progressively by around one third over the next 5-7 years, strongly supporting the Scottish economy and the Government’s objective of sustainable economic growth11. Moreover, the underlying market demand for fish and seafood products is increasing by 6-8% per year, so development is important for Scotland to maintain its present competitive position as the premium-market provider.

The Scottish salmon industry has the potential and desire to continue to develop but salmon farming is capital intensive and requires economically viable marine farm sites to allow it to maintain competitive capacity and efficiency of operation. The industry has a very good record of Scottish and inward investment. In the past three years salmon companies have made capital investments of £84m in Scotland. Some 96% of this has been in the Highlands and Islands, including investments in Shetland (£35m), Argyll & Bute (£23m), Highlands (£15m), Western Isles (£5m) and Orkney (£3m). However, such investment requires a stable and predictable planning regime with a long-term vision and a regulatory framework that supports and facilitates industry development. It should therefore be noted that there has been little development of new aquaculture capacity since the late 1990’s and rationalisation of existing farms has been accompanied by a reduction in total production of approximately 30,000 tonnes since 2003.

Marine (Scotland) Bill: planning and licensing overview

The consultation document12 leading up to the publication of the Marine (Scotland) Bill, accurately highlighted the planning and regulatory regime for Scottish aquaculture as being overly complex and bureaucratic, creating barriers to the strategic objective of further developing Scottish aquaculture in line with the Scottish Government’s and the EU’s strategic objectives. Member companies of the Scottish Salmon Producers Organisation (SSPO), who are responsible for 95% of farmed salmon production in Scotland, fully endorsed this analysis and welcomed the prospect of a Marine Bill promising to address the issues.

However, the industry is dismayed that the Marine (Scotland) Bill (as introduced) has singularly failed to deliver on that promise. Not only does it not simplify the present planning and regulatory system – a stated objective of the proposed legislation - it outlines arrangements that are significantly more complex and less streamlined than those which currently exist.

SSPO fully supports the objectives of the Marine Bill: to introduce a planning system and arrangements that will help to reconcile and manage competing demands on marine areas; and to introduce an overarching planning and marine licensing role for the Scottish Government (through Marine Scotland), which will set marine policies and provide an activity licensing system for marine activities. However, we simply cannot understand that, uniquely amongst all marine activities, aquaculture is excluded from the comprehensive new arrangements – despite the fact the Bill was specifically proposed to simplify the planning development and regulation systems for marine aquaculture.

Planning and licensing: specific points

Section 54: Power to Order Fish Farming is Not a Development

Under Section 54 of the Bill it is proposed that the planning development of fish farms will continue to be under the Town and Country Planning Act 1997 and under the planning development powers of the Local Authorities, as at present. However, where individual Local Authorities do not wish to maintain development powers for aquaculture, responsibility will revert to the Scottish Government (Marine Scotland) and presumably operate under the marine licensing system. These proposals will have three main consequences:

  • The aquaculture industry will continue to suffer from the failings of the present planning development and regulatory system, with its divided responsibilities and multi-agency complexities.

  • Immediately or over time, depending on the decisions of individual Local Authorities, the aquaculture industry will be faced with two fundamentally different planning development and regulatory systems operating side by side, in some cases within a single Marine Region (as proposed).

  • Where there are competing or conflicting interests for use of a single marine site the ‘competing interests’ will be divided between the responsibilities of separate bodies, the Scottish Government (Marine Scotland) and the relevant Local Authority (for aquaculture).

We can find no logic leading to the present proposals under Section 54 of the Bill, as the Marine Licensing arrangements outlined in PART 3 of the Bill fully recognise the need for local democratic accountability. However, if the Scottish Government feels that it is expedient to go beyond that provision, specifically in respect of marine aquaculture, the logical solution would be:

To order that marine aquaculture will no longer be ‘development’ for the purposes of the Town and Country Planning Act (1997).

To establish the proposed activity-based marine licensing system for aquaculture under the Scottish Government (Marine Scotland), bringing aquaculture into the same legislative framework as all other marine activities.

To devolve responsibility for marine licensing of aquaculture from Scottish Government (Marine Scotland) to Local Authorities which wish to allocate local resources to undertake the task.

Taking this approach, marine licensing, including for fish farms, would be established as the universal system when the Marine Bill came into power (with whatever transitional arrangements that would be required). Local Authorities would then operate the same marine licensing system for aquaculture as the Scottish Government (Marine Scotland) and a single, simplified and streamlined activity licensing system could be introduced across all the proposed Marine Regions. Moreover, this would be a tried and tested approach since similar arrangements operated satisfactorily in Shetland and Orkney prior to the Town and Country Planning Marine Fish Farming (Scotland) Order 2007

Section 8: Marine Regions and Regional Planning

We are concerned about the vagueness and lack of structure in the proposals for the Marine Regional Planning under Section 8 of the Bill. The proposed arrangements seem casual and unrealistic in approach, and likely to create variability and inconsistency in approach, objectives and outcomes between Marine Regions. We believe this planning activity, which has huge strategic implications for the sustainable growth of the Scottish economy at the macro-economic and local levels, requires a much clearer focus and specialist, properly-resourced leadership. Under our approach outlined in paragraphs 3.2 and 3.3, we believe that this would best be met by the leadership being provided by Marine Scotland and the ‘group of persons’ who will be responsible for the development of the regional plan being more specified. We strongly recommend that Section 8 of the Bill should be modified accordingly.

Marine Licensing for Aquaculture

The Marine Bill does not contain specific proposals on the detail of marine licences for aquaculture and we assume these will be developed either through secondary legislation or Scottish Government administrative action. The salmon farming industry has clear views about the design of the licence system that is required. Specifically the approach must embrace:

Permanent licences (unlimited by time) for permission to produce particular aquaculture products in Scottish waters.

Permanent licences (unlimited by time) for the use of specific sites for aquaculture production i.e. the same permanent provision as under the present planning system

Scope to maintain sites not stocked to allow for routine fallowing and good management practices, for strategic development purposes, for the relocation of active production from one site to another.

  • Licensing embodying the equivalent of permitted development rights to allow the configuration of sites to be modified and developed within the limits of overall production consents, to allow implementation of new technology and best management approaches at specific locations.

  • One site database held by Marine Scotland with the status of each site being properly classified for license and recording/reporting purposes. At present there are three divergent and discrepant databases held by Marine Scotland (formerly Fisheries Research Services), Scottish Environmental Protection Agency and Crown Estate.

Part 5 - Seals

Drafting Issues and Omissions

Drafting changes are required in PART 5 of the Bill to address two specific points. Firstly, PART 5 is titled ‘Conservation of Seals’. This should be changed to ‘Protection of Seals’. ‘Conservation’ implies that the seal populations in Scotland are under threat requiring conservation measures. That is not the case. Scientific data indicate that the present population of Grey Seals has increased from around 40,000 to around 170,000 and is stable. Corresponding data for Harbour Seals indicates a current population of around 30,000, although the overall population has been declining recently.

Secondly, under Section 98 (f) there is provision for authorised killing of seals ‘to prevent serious damage to fisheries or fish farms’. However, there is no provision ‘to protect the health and welfare of farmed fish’, despite the fact that such protection is a statutory requirement on fish farmers under the Animal Health and Welfare (Scotland) Act 2006. This additional clause needs to be inserted in the Bill.

Seal Licences

The salmon industry goes to great lengths through defensive net structures and various deterrent devices to minimise the risk of seal attacks on farmed fish. However, there is sometimes an unavoidable need to deal with rogue seals that ignore deterrents and are persistent in their attacks. Where necessary, shooting of seals is undertaken by skilled persons under strictly prescribed and controlled conditions. The industry therefore has no objections in principle to the generality of the provisions in PART 5 of the Bill or to the introduction of Seal Licences.

However, there are specific concerns in respect of the reporting requirements contained in Section 100 of the Bill. Firstly, there is a need for all legislation to be proportional and the present proposal for a licensee to report each ‘killing or taking of a seal’ to Scottish Ministers ‘as soon as is reasonably practical’ seems disproportionate and unnecessarily bureaucratic. We would respectfully suggest that an annual reporting cycle, with individual killings or takings detailed by date of occurrence would be fully commensurate with any statutory or wildlife management need.

Secondly, there is a deep concern on both the part of individuals and of businesses about the way seal licence data will be publicly reported. There is a body of seal activists in the UK who have shown a willingness to engage in direct and, in some cases, extreme measures. Whilst it is accepted that everyone has a democratic right to their views, fish farm personnel have a corresponding right to be protected from threats or actions in undertaking their lawful business. We therefore respectfully request that the Bill should make specific provision for the publication only of aggregate annual data relating to Seal Licences.

Scottish Salmon Producers’ Organisation

11 June 2009

SUPPLEMENTARY SUBMISSION FROM SCOTTISH SALMON PRODUCERS’ ORGANISATION, 17 June 2009

Introduction

Following our 11 June presentation of evidence to the Rural Affairs and Environment Committee (RAEC), we were asked to submit supplementary evidence by the 17 June meeting. This paper provides our comments.

Comments extending from our initial evidence

The initial evidence provided by SSPO concentrated on three main topics: regional marine planning; a licensing system for aquaculture; the issuing bodies for aquaculture licenses.

Regional Marine Planning

The Bill makes provision for the designation of a public body or an ‘unincorporated group’ to undertake marine planning within a defined marine region. These groups are being referred to as Regional Marine Planning Partnerships (RMPPs). We were concerned over the need for leadership, focused remit, well-organised structures, and the expertise and resources to ensure that RMPPs operate effectively to ensure the development of marine planning and the proper linkage between the national and regional marine planning. The groups represent a highly discretionary planning system based on a democratic consensus across a wide range of elected and non-elected stakeholders, some representing single interest groups.

Our suggestion was to task Marine Scotland to lead the RMPPs to ensure that the regional marine plans were delivered which took full account of national and international policies and statutory requirements. We were pleased to discover this was a widely shared view.

Andy Rosie of SEPA suggested that there might be commonality between the RMPPs and the SEPA River Basin Advisory Groups. We agree that the two groups may have some commonality of membership. However, they do not have the same purpose and we believe there may be conflicts of interest between the two groups. We recommend that the RAEC seeks views from the Association of Scottish Shellfish Growers on this matter. Our view is that Marine Scotland must have a clearly stated and unimpeded responsibility as the competent authority for Scottish marine resources.

Licensing System for Aquaculture

We consider that for the Marine (Scotland) Bill to reduce the overwhelming complexity and bureaucracy of the present system and deliver the streamlined system for aquaculture that the Scottish Government promised, the existing legislative framework must be changed. This requires the Government to order that aquaculture is not a development under the terms of the Town and Country Planning Act (1997) but is within the jurisdiction of a new purpose-designed marine licensing system.

We have commented elsewhere on the characteristics required of the aquaculture licensing system. These include: permanent licence approval; activity licensing (streamlining the licensing process); scope to maintain sites stocked or not stocked for management and development purposes; and ‘permitted development’ arrangements. This would allow aquaculture to be brought into the same overarching licensing system as all other marine activities and would remove the prospect of the industry having to deal simultaneously with two entirely different legislative frameworks (which is the case under the Bill in circumstances where both Local Authority and Marine Scotland systems may apply side by side).

The required changes to the Bill can be simply effected by:

i) redrafting the first statement in Section 54 (3)(1) of the Bill to read:

(1) ‘Scottish Ministers order that – ‘

and

ii) deleting clause Section 54 (3)(2).

Issuing of Aquaculture Licences

We wish to emphasise to the RAEC that the introduction of a purpose-designed aquaculture licensing system (as in 2.5) is an entirely separate consideration to the question of who issues the aquaculture licence to the business operator; the two matters should not be confused (as they are in the Bill, as presented).

There is an arguable case, which we anticipate will be made to the committee that all licences could be provided directly by Marine Scotland. This would follow a similar approach to the highly-regarded model adopted for Scottish waters by the Department of Energy and Climate Change (DECC) Unit in Aberdeen. However, there is also a history of both Shetland Islands Council and Orkney Islands Council successfully operating a ‘Works Licence’ system for many years prior to the introduction of the Town and Country Planning Marine Fish Farming (Scotland) Order 2007. The SSPO considers that either or both Marine Scotland and Local Authorities could issue licences if a single streamlined licensing system was adopted.

We have received representation from some of our members in Shetland that a local point of licensing would be preferred and there is an understandable view that licences should continue to be issued by the Shetland Islands Council. The Council is also demonstrably efficient in dealing with applications; a recent SSPO survey indicated that Shetland Islands Council took an average of 4 months to deal with aquaculture planning applications as compared with 9 months for Highland Council, for example.

Our solution to the potentially divergent decisions of Local Authorities on whether they wish to invest resources in maintaining a role in aquaculture licensing is for the Scottish Government to delegate the issuing of licences to those Local Authorities who wish to undertake the role and can provide the resources to do so. This could be achieved by a small insertion (as underlined) in Section 16 (1) of the Bill so that it reads:

(1) No person may –

(a) carry on a licensable marine activity, or

(b) cause or permit any other person to carry on such an activity,

except in accordance with a marine licence granted by the Scottish Ministers or by a body to which Scottish Ministers have delegated the power to grant a licence.

The committee asked us to explain how this approach would remove ‘inconsistencies’ in licensing decisions between two different Local Authorities or between a Local Authority and Marine Scotland when more than one licensing body had responsibility in a marine region. Our view is that licensing is a criteria-referenced, evidence based process with a quasi-legal or statutory status (depending on the aspects of licensing considered). Since the criteria for approval of a licence and evidence in support of an application will be specified (in some parts as a result of a statutory requirement), any competent licensing body following an objective and transparent licensing process will come to the same decision for or against issuing a licence. We envisage that consistency of decision making will be further enhanced by Marine Scotland’s oversight and reporting of the totality of Scottish aquaculture statistics, including those for licensing13.

The RAEC may find it helpful to know that a recent SSPO survey indicated there is currently an average of 18-19 aquaculture planning applications per year (mainly for site modifications) across the 6 Local Authority areas where aquaculture is a significant marine industry. With this level of application it is challenging for all authorities to maintain the level of specialist expertise required to deal with aquaculture applications. We think there could be major benefits to the Local Authorities and to industry from cooperation between Local Authorities in sharing resources for aquaculture planning. We would also note that the change to marine licensing will introduce a need to ensure sufficient resources to allow a smooth and efficient transition from the present planning system.

Appeals processes

The RAEC specifically requested further comments on planning and licensing appeals (two separate matters) under the Bill. This question was posed particularly in regard to the fact that Marine Scotland has been established as a Scottish Government Department (rather than any other type of governmental body).

We believe there need to be appeal processes both in regard to planning and (separately) licensing decisions, with the right to appeal being confined to interested parties. Since Marine Scotland is a Scottish Government Department we believe that it will be necessary to establish an Ombudsman mechanism to deal with its decisions. In the case of licensing appeals against decisions made by Local Authorities operating under devolved powers (see paragraph 2.10) we consider Marine Scotland could provide the appeals mechanism.

Scottish Salmon Producers’ Organisation

17 June 2009

SUPPLEMENTARY SUBMISSION FROM SCOTTISH NATURAL HERITAGE, 11 June 2009

SNH is the Government agency charged with the conservation and enhancement of Scotland’s habitats, wildlife and landscapes, with facilitating their enjoyment by the public and with increasing the general level of understanding about this resource. Its statutory purposes also include ensuring that the natural heritage is used sustainably.

We are supportive of provisions in the Marine (Scotland) Bill. In our view they represent a turning point in the management of Scotland’s seas. They offer the prospect of a more integrated, forward-looking approach to management that takes proper account of nature conservation alongside other uses of the sea. They raise the prospect of recovery for features that are under threat, and provide the basis for a rational approach that founds decisions about future use on the condition of marine ecosystems. With these additions to the legislative and management framework, Scotland should be able to deliver its contribution to an ecosystem-based approach to management of activities in the marine environment. The following comments propose modifications that would strengthen the role of the Bill to sustain Scotland's natural heritage.

Part 2. Marine Planning

The introduction of a marine planning system is one of the most far-reaching elements of the new proposals. A planning system should be able to integrate the current sectoral approaches to marine management. It should be able to guide the spatial distribution of activities and ensure they occur within areas most appropriate for them. It should be able to take a strategic approach to the delivery of multiple benefits from Scotland's seas, and to manage cumulative impacts. Through its links with broader management it should complement the role of Marine Protected Areas. It offers the prospect of flexibility and adaptability, and the recognition of ecological as well as administrative boundaries. Spatial mechanisms have roles in sustainable resource use (eg preventing damage to nursery areas and other vulnerable fishing grounds), as well as in safeguarding features of natural heritage value.

In our view a proactive and planned approach to the management of marine resources has potential benefits for the whole of Scotland's waters. Such a marine planning system would benefit from a statutory purpose clearly founded on the principles of sustainable development and environmental protection. In the absence of any reference to the tier of planning linking Scotland with the UK and internationally, in our view the Bill should make provision to ensure compliance at all times with international obligations, such as the Marine Strategy Framework Directive. It should contribute to high level objectives already agreed to by Scottish Ministers and conform to the National Planning Framework. This issue has particular relevance for the Solway Firth, where coordination between the Scottish and UK Marine Bills will be required to deliver effective management for a single ecosystem unit.

We support provisions to set out national marine objectives, as a means to achieve overall strategic goals for maritime management. The integration of social, environmental and economic objectives to secure “multiple benefits” needs to be guided by recognition that for its long term survival the human race has to live within the limits of the ecosystems that make up the natural world. For this reason we envisage an important role for marine ecosystem objectives underpinning economic, social and environmental priorities, and setting out the environmental limits within which sustainable development can continue to take place. Getting the balance of these objectives right in the planning system and associated licensing decisions will play an important part in ensuring that we fulfil our obligations towards achieving Good Environmental Status under the EU Marine Strategy Framework Directive.

We support the flexibility over delegation of functions for regional marine planning, such that regional planning could be carried out by Marine Scotland, a public authority or a Marine Planning Partnership, depending on local circumstances. We consider there is a need for further work to establish the pros and cons of these different options, the circumstances where each option may be most appropriate and the remit, structure and resourcing of a Marine Planning Partnership that would be needed to enable it to fulfil regional marine planning duties.

Because of the way fisheries affect all aspects of marine management, it will be very important to ensure effective integration between regional marine plans and the relevant Inshore Fisheries Group management plans. Fishing has been, and remains, the most significant modifying influence on marine habitats and species. Fish stocks of several commercially important species are at historically low levels, and in some instances are considered to be outside safe biological limits. Mean fish sizes are smaller, diversity amongst fish stocks is declining, and the structure of marine communities has been altered significantly. At the same time, fishing effort remains above levels that will allow stocks and hence the environment to recover. As stocks of popular species have declined, some fishing effort has been transferred to other species, making them vulnerable to over-fishing. Fishing is implicated in habitat disturbance, damage and changed community structure through heavy fishing gear dragging across the seabed, along with possible genetic changes in fish stocks as a result of sustained fishery pressure. Reduced fish populations (e.g. sandeels) impact directly upon predator populations including those of birds and marine mammals.

We welcome the statement in the policy memorandum that ‘Scottish Ministers remain committed to Integrated Coastal Zone Management (ICZM) as a strategic management process….across the land/sea interface’. There is no reference to ICZM on the face of the Bill: ICZM may not be an easy process to translate through legislation. It is useful that the Bill clearly requires effective coordination between terrestrial and marine plans; this will go far to resolving many of the problems that ICZM is designed to address. We would stress that ICZM seeks, in addition to planning, to ensure that management of inshore waters is coordinated. Even when marine plans are in place there is likely to be a need for ongoing liaison and dialogue between stakeholders to ensure coordinated implementation, along with provision for conflict resolution and joint projects. This suggests that alongside marine planning, there may be ongoing ICZM functions for Marine Planning Partnerships.

Part 3. Marine Licensing

We support the intention of streamlining the current licensing system and in particular to merge the licensing functions under Food and Environment Protection Act Part II and Coastal Protection Act Part II and to introduce a new marine licence which focusses effort on those developments considered to be likely to have the greatest risk associated with them in terms of environmental impact. We also support the provisions under Part 2 for public authorities to take decisions in accordance with the relevant marine plans.

We understand that statutory consultee status for the new marine licence will be determined by order. We are keen to learn from the reform of the terrestrial planning system, particularly in terms of not being consulted on every application, but equally to be confident that the new system will deliver effective protection for Scotland’s marine natural heritage. We also need to be aware of the differences between terrestrial and marine approaches. For example, the lack of available information can often hinder good decision-making. There may be a need for some interim agreements to be put in place until MPAs and regional marine planning are up and running. Hopefully both will help to better guide activities/developments to apporpriate locations in future.

We continue to support the priniciple of focusing on those activities/developments considered to pose the greatest risk. We support adoption of a simplified CAR model of registration and licensing, based on clearly defined thresholds. To apply the CAR model, specific thresholds would need to be set for different activity types. They would need to take into account cumulative effects (with individual licensing decisions being linked to regional planning objectives, which in turn would be linked to MEOs), so as to ensure adequate consideration of multiple developments in confined areas and/or the submission of multiple applications for single developments below the set threshold. Decisions about where the tiers of authorisation would lie, for example to determine under what circumstances a dredging proposal is considered either as a registration or as a licence, need to ensure that the sensitivities of important habitats and species (including those within protected areas) are taken into account. The thresholds need to be capable of recognising locational differences (the sensitivities of habitats and species will be different in a sheltered lagoon, for example, to open coast), rather than simply set a standard that is applied uniformly throughout Scottish territorial waters.

The Bill currently makes provision for a statutory consultation period for licence applications relating to MPAs, but not in other locations. Our view is that this is standard good practice. Without a defined period there is a concern that environmental interests and others may not be able to effectively make their views known.

SNH’s view is that the landscapes of Scotland’s coasts and inshore waters should be included as part of the consideration of ‘protecting the environment’ when determining licence applications. (See also comments on landscape under Other issues below.)

Part 4. Marine Nature Conservation

We welcome the new proposals for nature conservation, especially as some elements of Scotland's marine biodiversity are under particular threat. The absence of any mechanism for spatial protection of important natural heritage features, beyond the Natura network, has contributed to the current situation where a number of Scottish habitats and species are threatened and declining. The new Marine Protected Area (MPA) power is potentially one of the most significant benefits likely to arise from the proposals. MPAs, in combination with marine planning and other tools, will help safeguard ecosystem health and in turn the ecosystem services such as fisheries that we derive from the marine environment.

International experience in managing MPAs shows that they are most effective when managed as part of a network because the individual MPAs are located such that the network as a whole contributes to the conservation of the range of important marine features and thus to maintaining healthy and biologically diverse seas. Scottish Ministers have international commitments to develop a network of MPAs. Over and above reporting on the network to Parliament, in our view it would be useful to include reference to developing the network within the Bill, perhaps through requirement to have regard, when designating individual MPAs, to the extent to which it would contribute to the MPA network. Similar provisions are included for Sites of Special Scientific Interest within the Nature Conservation (Scotland) Act and these have helped to provide clarity on and a focus for the development of the series of sites.

Currently the focus of the Bill in conserving marine flora and fauna appears to be on those species considered to be rare and threatened. In our view conservation value is more complex assessment than this. Species can appear rare simply as a consequence of low levels of recording, or because they are at the edge of their range. While rarity and population trend are important considerations, assessment of nature conservation value also needs to take account of factors such as the degree to which a feature is distinctively Scottish, or whether Scotland is considered to be a stronghold for it, or it provides ecological resources e.g. places for feeding, breeding, resting, nurseries, juveniles and/or spawning, or sediment supply.

The new provisions for managing MPAs, such as the proposed Marine Conservation Orders, are helpful and have built on our experience to date of managing terrestrial and marine protected areas. We welcome the general advisory role given to SNH. Two additional elements would enable SNH to support those making decisions relating to the planning and management of MPAs more effectively. These would be the requirement to provide formal advice on operations for MPAs alongside the conservation objectives (analagous to our current responsibilities for European Marine Sites) and a pre-consultation stage to assist public authorities in determining whether or not a proposal is insignificant in relation to the protected features of a MPA. From our experience of SSSI, even with written guidance this is still a task that most authorities find difficult.

Offences for protected features of Nature Conservation MPAs must be judged against both parts of section 83(1). Our view is that it should be sufficient to either carry out a prohibited act or significantly hinder the achievement of the relevant conservation objectives. Linking offences to the conservation objectives of a MPA is potentially a very useful approach, however, this does have implications for the way in which conservation objectives are developed. For example, they would have to be made specific to individual features within specific MPAs i.e. they would be quite different to the conservation objectives for marine SACs. Further work would be required to determine how conservation objectives for MPAs should be provided.

Whilst there is a responsibility to report on the extent to which the conservation objectives of MPAs have been met (section 91), the Bill does not identify which organisation would have responsibility for monitoring the condition of protected features within MPAs. SNH currently undertakes this role for marine SACs (as well as for many terrestrial protected areas). Givent the resource implications, it would be helpful to have this clarified.

We welcome the proposal to transfer SNH’s species licencing functions to Marine Scotland and would like to see SNH retain a statutory consultee role.

Part 5 Conservation of Seals

We support the proposed provisions relating to the conservation of seals. We believe they reflect well the consensus developed through the Scottish Seals Forum and outlined in SSfA. We have some minor comments to make. Firstly, the Policy Memorandum cites experience from the Moray Firth. The development of a management plan was, in our view, key to the success of the pilot. Whilst we accept that plans could be developed on a non-statutory basis, we feel it could be useful to include provision for this measure within the Bill. Secondly, section 103 relates to consulting SNH prior to issuing a licence ‘in a protected area’. Because seals are highly mobile it would be useful if the clause could recognise a slightly broader advisory role for applications ‘in or likely to have an effect on a protected area’. Section 104 identifies NERC as consultees for seal conservation areas. SNH might also usefully have a role in advising on seal conservation areas where these overlap with a protected area.

The legislation makes provision to consider the effect of licences on protected areas and on favourable conservation status of seals. Whilst SNH does not necessarily need to be consulted on every licence application, there may be a need to consider how the cumulative effects of a number of licence applications outwith protected areas may be assessed and, in turn, how this assessment should feed into licensing decisions.

Part 6 Common Enforcement Powers etc

We welcome the provisions to improve enforcement powers and arrangements. In our response to SSfA, we highlighted a number of advantages from the proposed approach of bringing enforcement powers together under one organisation, now established as Marine Scotland. All of these comments apply to the proposals now set out in the Bill. We believe the advantages include ensuring better consistency and efficiency in enforcement activity and being better able to ensure that the organisation has sufficient resources to carry out enforcement effectively. In terms of ensuring our most important biodiversity and geodiversity are conserved whilst at the same time enabling new activities or developments to proceed, the use of conditions on licences can be very important. We believe that the proposed new enforcement arrangements will help to ensure that these conditions are adhered to.

Other issues

Out of all marine uses, fisheries is one of the most widespread and affects all aspects of marine management. In our view it is crucial that fisheries plans or strategies (including those developed by the Inshore Fisheries Groups) take account of plans developed under the new marine planning system and vice-versa. Currently, the relationship between the proposed Marine Planning Partnerships and Inshore Fisheries Groups is unclear and in the wider context in relation to management under the Common Fisheries Policy. The way in which Scotland will give effect to fishery-related elements of Marine Ecosystem Objectives also needs a certain amount of thought. Overall, it remains unclear how the new framework for marine management in Scotland will integrate with relevant aspects of the management of the fishery sector.

The landscapes of ourcoast and inshore waters are very special, with many of our coastlines recognised of being of national importance for their scenic qualities. But it is the extent, diversity and quality of the resource as a whole for which Scotland is renound. Nowhere in Scotland is more than 65km from the sea, and our coastal landscapes provide the setting for where the majority of uslive, work and play. They are also of major importance for outdoor recreation and tourism, with some of the opportunities for sailing, sea-kayaking, wind surfing, diving and wildlife watching considered to be of international importance.

For these reasons we consider thatit will be critical for the future legal, policy and administrative framework for managing Scotland's seas to include proper recognition of coastal landscapes and their importance for outdoor reaction. At present the proposed legislation does not address the protection, planning or management of these resources directly. It will therefore be important that the marine ecosystem objectives and other aspects of the policy and planning framework that will be developed to implement the legislation give due recognition to these matters. Further consideration should also be given to how current terrestrial mechanisms - such as NNRs, NSAs, National Parks, long distance routes and access rights- will interface with the new arrangements for marine planning and management, and whether the principles of thenew framework is fully in keeping with the principles of the European Landscape Convention.

Scottish Natural Heritage

11 June 2009

SUPPLEMENTARY SUBMISSION FROM SCOTTISH NATURAL HERITAGE, 17 June 2009

SNH welcomes the opportunity to submit supplementary evidence following the Committee meeting on 10 June 2009.

In the first evidence session several organisations expressed the view that Marine Scotland should have a lead role not only for marine planning at a national level, but also at a regional level. We support this view, noting that clear leadership will be needed in this area.

In addition, in relation to regional planning, the policies for management need to be sufficiently targeted and precise at this level to provide useful guidance to decision-makers, otherwise they may struggle to interpret/implement those policies in their day-to-day work.

To do this, we would envisage Marine Scotland leading and facilitating the preparation of regional marine plans with regional stakeholder groups. This arrangement could also help ensure coherence with the national marine plan and high level objectives, and provide a mechanism for taking final decisions in the face of conflicting views. We would find helpful clarification that the provisions in the Bill, as currently drafted, would allow this type of arrangement and, in particular, whether the provisions would allow Marine Scotland to retain a lead co-ordination role for Marine Planning Partnerships.

Out of all marine uses, fisheries is one of the most widespread and affects all aspects of marine management. In our view it is crucial that fisheries plans or strategies (including those developed by the Inshore Fisheries Groups) take account of plans developed under the new marine planning system and vice-versa. Currently, the relationship between the proposed Marine Planning Partnerships and Inshore Fisheries Groups is unclear. The way in which Scotland will give effect to fishery-related elements of Marine Ecosystem Objectives also needs a certain amount of thought. Overall, it remains unclear how the new framework for marine management in Scotland will integrate with relevant aspects of the management of the fishery sector.

SNH

17 June 2009

SUPPLEMENTARY SUBMISSION FROM SEPA

I refer to your recent telephone conversation with my Water Policy Unit Manager, Les Watson and thank you for agreeing to the Scottish Environment Protection Agency (SEPA) providing additional comment on the provisions of the above Bill in relation to Its impact on Scotland.

Marine Licensing

Within the provisions of Part 2 of Schedule 10 to the Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR), there is the facility for applications for certain “relevant authorisations” to consider the requirements of CAR and provided the “relevant authorisation” complies with the requirements of CAR, a separate CAR authorisation is not necessary.

Part 3 of the Marine (Scotland) Bill — Marine Licensing — appears to contain provisions which would allow an activity interpreted as a licensable marine activity but also a controlled activity under CAR to be authorised under CAR. Section 24 of the Marine (Scotland) Bill currently states’ that “the Scottish Ministers may by order specify activities which are not to need a marine licence”. However, it may prove to be difficult to list all the marine activities which are also controlled activities under CAR in a concise legal way.

An alternative, and more straightforward option would be to include under s17 - Licensable marine activities, a subsection “A marine licence is not required for those activities for which an author/sat/on is required under the Water Environment (Controlled Activities) (Scot/and) Regulations 2005”.

As a public body committed to openness and transparency, SEPA feels it is appropriate that this response be placed on the public record. If you require further clarification on any aspect of this correspondence, please contact Les Watson, Water Policy Unit Manager.

SEPA

9 July 2009

22 June 2009 (18th Meeting, Session 3 (2009)) – Written Evidence

SUBMISSION FROM SOLWAY FIRTH PARTNERSHIP

Solway Firth Partnership

Local coastal partnerships, including Solway Firth Partnership, first became established in the early 1990s in response to formal support for integrated coastal zone management (ICZM) from the European Union, UK Government and agencies. The need for integrated management of the Solway Firth is particularly pressing due to the national boundary which results in a necessary increase in the number of agencies and organisations operating under different legal, cultural and social systems, leading to different management practices. The Partnership has an independent, charitable status and acts as a catalyst in bringing people together to identify issues and actions needed to deliver its aims.

The Partnership’s work is based on the following Guiding Principles:

  • Community Support & Participation – The importance of establishing active partnerships to ensure understanding and public involvement in developing goals and actions.

  • Wise Use of Natural Resources – The importance of developing the region’s economy in an environmentally sustainable way.

  • Maintaining Social & Economic Diversity – The recognition that a rich and diverse social, cultural and economic environment can be achieved by encouraging activities and development of an appropriate size and scale.

  • Integration – The recognition that multiple use of the Firth can be achieved by developing goals which are capable of accommodating a range of users and activities.

The Partnership brings together all those involved in the development, management and use of the Firth within a framework which facilitates the integration of their interests and responsibilities. The Partnership has shown that it can use its communication and networking advantage to deliver long-term sustainable management solutions for the Solway Firth. This has included acting as a springboard for development of sustainable shellfish management mechanisms, development of an Aquaculture Strategy for the Solway, facilitating consultation with the fisheries sector and supporting Management Schemes for European Marine Sites.

Corporate members of the Partnership are:

Allerdale Borough Council
Annan District Salmon Fishery Board
Associated British Ports
Carlisle City Council
Copeland Borough Council
Countryside Agency
The Crown Estate
Cumbria County Council
Cumbria Sea Fisheries Committee
Dumfries and Galloway Council
Environment Agency
Marine and Fisheries Agency
Natural England
Nith District Salmon Fishery Board
SEPA
Scottish Natural Heritage
Scottish Water

Solway Firth Partnership (the Partnership) welcomes the Marine (Scotland) Bill and its provisions for creation of a framework to manage the increasing and competing demands for use of marine resources in the seas around Scotland and integration of environmental and socio-economic considerations to maximise economic growth within sustainable environmental limits. These aims align closely with those of the Partnership whose stated aim is to secure an environmentally sustainable future for the Solway Firth by supporting the economy while respecting the distinctive character, natural features, wildlife and habitats of the area.

The Partnership particularly welcomes the provisions for delegated power in relation to regional planning and the Marine Planning Partnership approach as set out in the Marine (Scotland) Bill (and associated documents), which provide scope for integrated planning and management of cross border areas such as the Solway Firth.

The Partnership’s concerns lie not with the Marine (Scotland) Bill itself but with the context in which it will be set. The UK Marine and Coastal Access Bill does not take a similar approach to regional planning and in its current form precludes development of a single plan for the Solway Firth. The Marine (Scotland) Bill cannot be viewed in isolation; its relationship with the UK Marine and Coastal Access Bill is critical to successful future management of the Solway. The Partnership continues to seek amendment of the UK Marine and Coastal Access Bill to enable the integrated eco-system approach to marine planning and management which is a founding principle of both Bills.

While there may be continued debate about definitions of eco-systems and criteria for establishment of marine regions, there is widespread agreement that planning and management of firths should not be divided and that they should be regarded as eco-system units. Furthermore, a considerable body of work including the Irish Sea Pilot Project has concluded that the Irish Sea, as a distinct and heavily used area, should be managed as a regional sea planning unit (of which the Solway Firth would be a component). The Irish Sea comprises the administrative jurisdictions of England, Scotland, Wales, the Isle of Man, Northern Ireland and the Republic of Ireland. This multiplicity of administrations within a relatively small and distinct regional sea could create much more complicated, rather than simplified, marine management arrangements unless sufficient emphasis is placed on the need for coherence within primary legislation. This would support the requirements of the Marine Strategy Framework Directive which prescribes an ecosystem approach, the UK Government commitment to developing a UK network of Marine Protected Areas and the biogeographical regional seas approach recommended by JNCC.

The Partnership is concerned that there will not be sufficient consistency and co-ordination between Marine Scotland, the UK Marine Management Organisation (UKMMO), and the comparable delivery mechanisms of the devolved administrations around the Irish Sea. While both the UK and Scottish administrations are providing assurance of joint working, this is not explicitly set out in the UK legislation as it currently stands. There is no formal requirement for co-operation between neighbouring administrations, no power to delegate preparation of regional marine plans and no scope to support a partnership approach to marine planning and management.

Specific examples of the need for an integrated cross border approach on the Solway Firth include:

Nature Conservation

The Solway carries multiple national and international conservation designations including Special Areas of Conservation (SACs), Special Protection Areas (SPAs), Sites of Special Scientific Interest and Ramsar wetlands. Solway Firth European Marine Site, which carries SAC, SPA and Ramsar designations, spans the national boundary. Natural England and Scottish Natural Heritage provide joint advice under Regulation 33 to inform other relevant authorities of the site’s conservation objectives and operations or activities which may adversely affect the habitats or species for which the site is designated. This advice guides the scope and nature of proposed plans which are likely to have a significant effect on the site. Partners from north and south of the border have worked together to develop a Management Scheme which is based on the requirements of the site as a single, cross border unit.

Renewables

Robin Rigg offshore wind farm is currently being constructed in the Solway and when completed will be the largest offshore wind farm in Scottish waters. The wind farm is connected into the distribution network at Seaton in Cumbria where there is an onshore substation. There are Crown Estate exclusivity agreements for a further two offshore wind sites in the Solway. There is also a proposal for a tidal energy barrage development in the inner Solway which is currently the subject of a technical feasibility study involving partners from Scotland and England including Scottish Enterprise, nb21c (the developer), Northwest Development Agency and Cumbria County Council. All aspects of these existing and proposed developments including public consultation, planning and consenting procedures, and assessment of environmental impacts need to be addressed in a Solway-wide context.

Fisheries

The Solway supports a diverse mixed commercial fishery based on a wide range of fish and shellfish species including nephrops, brown shrimp, lobster, whiting, scallop, mussel, cockle, winkle and whelk. It is anticipated that the existing Cumbria Sea Fisheries Committee will be replaced by a North West Inshore Fishery and Conservation Authority with jurisdiction south of the national boundary in the Solway, while there is a proposal to establish a Solway Inshore Fishery Group with jurisdiction on the north side of the national boundary. It is important to ensure that there are adequate means of integration between these systems as the nature of fishing is clearly such that it does not start or stop at an administrative line through the centre of the firth and anomalies neither help the fishing industry, nor the marine environment.

Water quality

The Solway Firth is part of the Solway Tweed River Basin Management Planning unit for the purposes of implementing the Water Framework Directive. This places a duty on SEPA and the Environment Agency to work together to jointly prepare a River Basin Management Plan for the Solway as a whole. The process is being supported by a Solway Area Advisory Group comprising partners from Scotland and England, including Solway Firth Partnership. This provides a clear example of a statutory planning process which spans the national boundary and addresses water quality in terms of the Solway as a whole.

Data and research

In common with most other areas, data gathering and research in the Solway has been led by a wide range of bodies, information is held in different places and has been collected in a range of formats. The establishment of a GIS based marine spatial planning system provides a major opportunity for improved integration of survey work and greater accessibility of data in future. For optimum effectiveness, such a system needs to operate on a Solway-wide basis.

Final comments

It is important to remember that the legislation and associated mechanisms to deliver marine spatial planning are the instruments by which higher level objectives should be achieved, “the ecosystem approach, not the administration approach”, as a delegate at the Sustainable Seas For All Consultation in Dumfries commented. We should be making our administrative systems fit our objectives, not vice versa.

Solway Firth Partnership welcomes the Marine (Scotland) Bill and seeks the support of Members of the Scottish Parliament in ensuring that it is adequately integrated with the UK Marine and Coastal Access Bill to enable us to achieve our common long term objectives of seas which are healthy and biologically diverse and which fulfil their maximum potential to support a prosperous economy.

Solway Firth Partnership

17 June 2009

SUBMISSION FROM BRITISH PORTS ASSOCIATION

Executive Summary

  • The British Ports Association (BPA) supports the principles underlying the Marine (Scotland) Bill.

  • We look to the Bill to introduce changes to the coastal policy and legislative framework in ways which will introduce benefits and new efficiencies.

  • The Bill should ensure that decisions are made which fully reflect economic and social considerations.

  • There is the possibility of fragmentation of responsibilities between the Scottish Government, Marine Scotland and Scottish Marine Regions.

  • The effect of the proposed extended licensing regime for dredging will need to be carefully monitored for its impact on port operations.

  • The level of resources available to Marine Scotland will be critical.

This response is made on behalf of the BPA’s Scottish Ports Committee which represents the overwhelming majority of ports in Scotland. It identifies those areas which will have a particular effect on the sector, and especially where we will be seeking more clarification from Ministers as the Bill goes through its parliamentary stages.

In 2008 we published a document (“Ports in Scotland: Delivering Value”) which described both the economic contribution and commercial and strategic importance of ports to the Scottish and UK economies.

Ports in Scotland handle approximately 100m tonnes of cargo each year, amounting to 17 % of the UK total and equivalent to 21m tonnes per person, compared with 8m tonnes for England. Equally important are the vital services provided by ports to the offshore energy and fishing sectors. Renewable energy offers new opportunities for ports who will play a significant role in providing service bases; ports are therefore an integral part of achieving climate change ambitions in Scotland.

Ports in Scotland receive no strategic direction or systematic financial support from government; they are substantially a private sector activity. Nevertheless, they rely strongly on the fitness for purpose of the planning and licensing regimes. As a result the Bill has major significance for ports.

The Bill largely consists of enabling powers and much will depend on the final form and application of National and Regional Marine Plans; there is much that is unknown at this stage, therefore, about its exact effects.

The areas of the Bill of main concern to us are:-

Part 2 3(3) – Marine Planning: National Marine Plan and Regional Marine Plans

Para 3: This states that a National Marine Plan “may in particular include economic, social and marine eco-system objectives”. In our view, it is vital that economic and social conditions are factored into any meaningful National Marine Plan and that they inform and influence regional plans, the identification of MPAs and the operation of the consents and licensing system.

The National Marine Plan should be compatible with the plans in other parts of the UK; Scotland should not be disadvantaged by a regime which is out of step with progress elsewhere.

We support the need for flexibility whereby plans will need to be adapted to changing circumstances.

Part 3 – Marine Licensing

The rationalization of the licensing system (for example the bringing together of FEPA and Coast Protection Act consents) is very welcome, as are the opportunities represented by the setting up of Marine Scotland, although this is outside the scope of the Bill. Equally, we support the taking out of scope the licensing of smaller projects, with registration rather than licensing, although we are unsure what the precise effect of “registration” is.

We are nevertheless concerned about the bringing into scope of dredging activity and forums of hydrodynamic dredging, which seems incompatible with the objective of reducing the overall burden.

The Explanatory Notes (p 47) to the Bill refer to an exemption for maintenance dredging from these new provisions where “established techniques” are involved. We strongly urge the Scottish Government to take this route, especially as dredgings disposal is already subject to a rigorous regime.

Part 4: Marine Protected Areas

We are concerned about the potential commercial impacts of designations. The Policy Memorandum (para 54) declares that there would be “a presumption of use” within MPAs, yet clearly the Bill also has powers to restrict activities in and around MPAs.

We assume that as the national plan factors in economic and social considerations, these will feed through into MPA designation, but the link is not as clear as we would prefer. The only other reference to economic issues is where there are sites of equal conservation worth, in which case commercial factors would be covered.

We will be seeking a clear undertaking in the Bill that the process of designation will automatically include consideration of economic and social factors.

Section 8

The setting up of marine regions is a highly significant step and ports will wish to play a full role within them, whether or not they are led by local authorities. Marine regions will deliver the national plan on a local basis and we expect to see economic and social objectives appropriately represented.

Representation on marine regions could be problematic. If all interests are to be represented, then marine region meetings could potentially involve a huge number of participants. Also, some thought has to be given to proportionality and weighting has to be given to various interests. We assume that the controlling influence will be national and regional plans; it should not be the role of the marine regions to re-invent those plans.

Previous consultations suggested that the regions could alter the conditions of a licence. The process here is still uncertain – to what extent could, for example, a marine region alter the terms of a licence agreed by Marine Scotland? We believe that the precise role of the regions in relation to licensing and other consents needs clarification.

Part 6, Section 132 : Power to direct vessel or marine installation to port

We believe this is an extension of an existing power so that a vessel suspected of committing an offence within an MPA could be directed into ports. What is lacking is any reference to consultation with the port and what redress could be available in the event that a vessel or marine installation occupies a berth and interferes with the day to day operation of the port. There is also the question of liability for pollution and clean up. Again, we will be asking for clarification from Ministers as to how these powers would be used.

British Ports Authority

15 June 2009

SUBMISSION FROM SCOTTISH RENEWABLES

Introduction

Scottish Renewables is Scotland’s leading renewables trade body, representing over 240 organisations involved in renewable energy in Scotland. Further information on the work and membership of our organisation can be found on our website (www.scottishrenewables.com ). This response has been formulated by Scottish Renewables following discussion with our membership, and with input from the Scottish Renewables Marine Work Group.

We hope you find these comments helpful. In our response to the Sustainable Seas for All consultation we commended the Scottish Government for its commitment to the development of offshore renewable energy in Scotland. We hope to see this commitment facilitated under new marine management structures. Should clarification on any of the detail in this correspondence be necessary, we will of course be only too pleased to answer any questions when attending the meeting of the Committee on the 22nd June.

General Principles

  • Any changes to marine management must actively encourage offshore renewables development as far as possible. This is on the basis of urgent needs to address climate change and energy security, as well as legally binding targets for European renewables development by 2020 as set out in Directive 2009/28/EC of the European Parliament and Council.

  • It is absolutely vital that there is co-ordination in the approaches taken to new marine management systems implemented in Scottish and UK waters. The offshore renewables industry has global reach, and many developers are likely to be taking forward projects across the UK. Complexity in differing approaches across Scotland-UK borders could halt or seriously compromise the progress of the renewables industry in Scotland.

  • There must be clear transition arrangements to the new marine management approach. Changes to marine planning, licensing and conservation could cause uncertainty and disruption to the offshore renewables industry at a critical time.

Detailed Comments on Bill14

Part 1

  • Section 1(1) defines the “Scottish Marine Area” as, effectively, Scottish Territorial Waters, including seabed & subsoil. The Crown Estate has already designated certain “zones” for potential sea-bed leases for offshore wind farms, in waters adjacent to the “Scottish Marine Area”. Wave energy deployments may also be likely in the ‘Scottish’ proportion of the Renewable Energy Zone, between now and 2020. SR believes there is an urgent need for clarity in the Bill around the planning, licensing and conservation responsibilities in the proportion of the UK Renewable Energy Zone adjacent to Scottish Territorial Waters.

Part 2

  • Section 3(1) gives Scottish Ministers the power to create a National Marine Plan for the Scottish Marine Area, but Part 2 makes no reference to any proposed similar powers for Scottish Ministers in the UK Renewable Energy Zone. As above, SR believes there is an urgent need for clarity around the planning, licensing and conservation responsibilities in the proportion of the UK Renewable Energy Zone adjacent to Scottish Territorial Waters.

  • Section 3(3) allows for National Marine Plans to include economic, social and marine ecosystem objectives. Such objectives were a key recommendation of the Advisory Group on Marine and Coastal Strategy 2007. We believe it is crucial that climate change mitigation objectives must be included in any National Marine Plan. SR would suggest that the word “may” in this Section replaced by the word “must”. Without such objectives, it is difficult to see how the review system for Plans would operate.

  • Section 3(5) states that Regional Marine Plans must be in conformity with National Marine Plans ‘unless relevant considerations indicate otherwise’. SR would strongly suggest that compliance of Regional Marine Plans with the National Marine Plan must be an obligation, rather than an option.

  • Section 11(1) states that public authorities must take any ‘authorisation or enforcement decision’ in accordance with the appropriate marine spatial plans ‘unless relevant considerations indicate otherwise’. SR would argue for the tightening of this provision in the Bill. In our view, it must be possible for public authorities to deviate from marine spatial plans only in exceptional circumstances. The alternative would create a lack of confidence in marine spatial plans, and therefore, increased investment uncertainty arising from plans.

  • As additional points about this Part, we remain unclear about the formal role of The Crown Estate in relation to marine spatial planning, and we would also like to request detail in the Plan relating to defined timescales for the production of National and Regional Marine Plans.

Part 3

  • Section 18(3) requires applications for marine licences to be ‘made in such form as Scottish Ministers determine’ and ‘accompanied by such fee as may be determined by regulations made by Scottish Ministers’.

  • As a general point here, SR believes that, given tight timescales for delivering 2020 targets on renewable energy, clarity is urgently needed on the consents and licensing framework to be implemented by the UK and Scottish Marine Bills for offshore wind, wave and tidal energy. Section 18(3) above does not give a great level of detail, but we appreciate the desirability of having the Marine (Scotland) Bill act as a framework, with certain detail handled through secondary legislation and policy. On this note, we recognise the current work being carried out by the Marine Energy Spatial Planning Group (MESPG) to recommend a simplified consents & licensing procedure for the offshore energy industries. We would suggest that in order to deliver certainty for the market:

    • The Marine (Scotland) Bill should give clarity on which current licences may be replaced by the Marine Licence envisaged by this Bill.
    • The Marine (Scotland) Bill should give clarity on where responsibilities for Marine Act licence determination and Electricity Act consent determination lie across the 12nm boundary with respect to devolution. This is particularly important for projects which potentially span this boundary.
    • The work being carried out by the MESPG should determine the detailed future process, within the broad confines of the Marine (Scotland) Bill, for determination of section 36 and Marine Act licences. Marine Scotland should also take forward work as soon as possible to determine the future fee structure for Marine Act Licences.
    • A short statement now from Marine Scotland & the Energy Consents Unit would be useful to give developers clarity on the current process, and timelines for its transformation (through the Marine (Scotland) Bill and the work of MESPG).
  • Section 18(3) provides for Scottish Ministers to require applicants to permit investigations which may be necessary to help them decide an application, and Section 18(4) provides for Scottish Ministers to require applicants to reimburse expenses for doing so. SR would suggest that investigations should be required in line with Environmental Impact Assessment procedures, and in discussion with developers. We would be wary of a situation where extra requirements outwith existing environmental legislation, and with uncapped costs, could be unilaterally imposed on developers. This provision could potentially have a particularly severe impact on marine energy developments, for which environmental impacts are currently unclear and economics are tight.

  • Section 20(1) states that in determining an application and its conditions, Scottish Ministers ‘must have regard to the need to: protect the environment; protect human health; prevent interference with legitimate uses of the sea.’ SR would strongly recommend revision of this clause. In particular it is unclear what is meant by “legitimate uses of the sea” or the rationale for protecting interference with them. We would strongly argue that the key factor for consideration in the determination of an application should be the National and Regional Marine Spatial Plans. If any additional guidance were to be necessary for the determination of applications, we would see the relevant guidance as the economic, social and marine ecosystem objectives. As outlined above, we would strongly argue that these objectives must include a proactive objective to mitigate climate change.

  • Section 23(3) provides that Scottish Ministers may suspend or revoke a licence if it appears that the licence should be suspended or revoked for any of the following reasons: ‘because of a change in circumstances relating to the environment or human health; because of increased scientific knowledge relating to either of those matters; in the interests of safety of navigation; for any other reason that appears to the Ministers to be relevant’. SR would strongly suggest revision of this clause. We would strongly suggest that it should be possible to revoke licences only in exceptional circumstances, for instance, relating to urgent environmental or human health issues. The alternative as worded in this clause would mean that developers could have almost no confidence in their licence. A lack of certainty on the degree of confidence which a developer can have in their licence means that a project becomes much riskier, and is much more unattractive for investors. Additionally, it might seem unnecessarily onerous in some instances that a licence can be revoked for effects as yet unknown, given the current lack of knowledge on environmental effects of marine devices. We would also ask for clarity here as to whether this provision would apply retrospectively.

  • Section 27(2) states that where a section 36 Electricity Act consent is required, Scottish ministers may decide that the s36 application and the Marine Licence application are considered together. Section 27(3) states that where this is the case, and one of the applications has been made but not the other ‘the application that has been made is not to be considered until the other has also been made’. SR would suggest the removal of Section 27(3). Section 27(3) could perhaps be replaced with wording along the lines of “parallel applications are encouraged as best practice”. The benefits of the parallel approach in terms of co-ordinating both government and developer resources are clearly evident. However, from a developer perspective, a delay in submitting a section 36 or Marine Act licence application could, through this clause, cause delay decision on a partner consent/licence, which could potentially be progressed without significant issues.

  • Section 29(1) states that Scottish Ministers must make regulations which allow an applicant to appeal against a licensing decision, but the section does not actually include these regulations. SR would like to see more detail in the Bill itself on such a process, although, again, we recognise the utility of having a framework Bill with detail decided through secondary legislation.

  • Section 35 discusses Remediation Notices and Section 46 discusses Stop Notices. The latter are to be issued if there is imminent risk of “serious harm to the environment”, “serious harm to human health” or “serious interference with legitimate uses of the sea.” As above, SR would strongly request clarification on the meaning of “legitimate uses of the sea”. Additionally, we would request clarification on the meaning of “serious harm to the environment” – this is important for marine energy in particular given that interactions between wave/tidal devices and the environment are as yet unknown and that there are not yet standard monitoring methodologies.

  • Section 42 states that Scottish Ministers may delegate certain marine licensing functions to either a public authority, or persons nominated by a public authority/Scottish Ministers. It appears that this could affect the marine licensing functions for renewable energy installations. SR strongly believes that decisions on Marine Licences for marine energy and offshore wind energy developments should be processed and taken at a national level. This is because the renewable energy industries are of national and international importance.

Part 4

  • This Part provides that in designation Demonstration & Research Marine Protected Areas, Scottish Ministers may have regard to ‘any social or economic consequences of designation’. This is not the case for Nature Conservation or Historic Marine Protected Areas. SR would like to see environmental, social and economic consequences of designation taken into account in the designation of Nature Conservation or Historic Marine Protected Areas. If such provision is not possible, then we would strongly argue for a statement in the Bill that designation of a Marine Protected Area does not necessarily exclude activities of other users of the sea which may be compatible with the objectives of the designation. We would suggest that if this element of the Bill attempts to bring the legislation in line with the Habitats Directive, then this should be made clear, and there should be a reference to ‘management schemes’ as under the Directive.

  • Section 67 gives Scottish Ministers the power to create an urgent designation where ‘Scottish Ministers consider there is an urgent need to protect the area proposed to be designated’. This would have the effect that the Ministers would not have to publish their intentions or consult on the decision. Such a designation could remain in force for 2 years. SR strongly disagrees with this section – it does not believe that urgent designations should be made without publication of the intent, and does not believe that they should be in place for 2 years without any sort of review. We believe this provision could make the development market for offshore renewables particularly uncertain.

  • Section 71 provides that where an authority is carrying out an authorisation decision which is capable of significantly affecting the purpose of a designated MPA, the authority must not grant authorisation for the act unless the applicant can prove the activity will not hinder the features of the Area, or if the applicant can prove:

    • There are no other means of proceeding with the act which would have lower impact; and
    • The public benefit of proceeding outweights the risk of ‘damage to the environment’; and
    • (in relation to Nature Conservation/Demonstration & Research) agrees to undertake measures of equivalent environmental benefit to the damage which the act may cause.

SR believes that, given its similarity to the European Natura framework, this level of protection is too high if the purpose of the introduction of Marine Protected Areas is to increase management of nationally important features.

  • As an additional point, we would ask for clarity under this Part on the process of a review for the need for MPA designations, and on publication of review results.

Scottish Renewables

17 June 2009

Monday 22 June 2009 (18th Meeting, Session 3 2009) – Oral Evidence

22 June 2009 (18th Meeting, Session 3 (2009)) – Supplementary Written Evidence

SUPPLEMENTARY SUBMISSION FROM SOLWAY FIRTH PARTNERSHIP

Solway Firth Partnership

Solway Firth Partnership (the Partnership) is an independent, charitable organisation which has been addressing holistic management of the Solway Firth for the past 15 years. The need for integrated management of the Solway is particularly pressing due to the inextricably interwoven nature of the wildlife, landscape and human use of the area, as well as the national boundary which results in a necessary increase in the number of agencies and organisations operating under different legal, cultural and social systems leading to different management practices. The Partnership has community support and participation at the heart of its operation and successfully engages with people who have a passionate interest in the future of the area.

Clause to address marine planning and management across national boundaries

Solway Firth Partnership welcomes the UK Marine and Coastal Access Bill and the Marine (Scotland) Bill which seek to create a framework to manage the increasing and competing demand for use of marine resources. However, the Partnership is deeply concerned that differences between UK and Scottish legislation, and insufficient consideration of the way in which legislation will apply in cross border firths, will lead to poorer rather than improved integration of planning and management in these areas.

The Marine (Scotland) Bill includes provisions for delegated power in relation to regional planning and a Marine Planning Partnership approach which provides scope for integrated planning and management of areas such as the Solway. However, the benefits of these provisions in cross border areas can only be realised if they are reflected in the UK Marine and Coastal Access Bill. Therefore, Solway Firth Partnership is seeking addition of a clause in the UK Marine and Coastal Access Bill to enable the integrated eco-system approach which is a founding principle of both Bills.

Clause to address marine planning and management across national boundaries

Suggested text:

“Where a boundary with a devolved administration cuts a recognised ecological unit such as an estuary then the MMO must make arrangements with the equivalent body within the devolved administration to prepare a single marine plan for that area. These arrangements may include the delegation of the power to prepare the plan to a: public authority or to a group of persons comprising (either or both) persons nominated by such public authorities with an interest in the marine region to which the marine plan applies as the Ministers consider appropriate, or persons nominated Ministers. Provided that prior to making a decision on this the Ministers seek the agreement of the relevant Ministers within the devolved authority. That plan must accord with the Marine Policy Statement unless relevant considerations indicate otherwise. The plan will not be adopted without the express consent of the MMO and the equivalent body for the devolved authority. The MMO and equivalent body for the devolved administration shall agree the process for the preparation and adoption of this plan where that may differ from the standard procedure for the preparation of marine plans. Once adopted, the regional plan will form a part of the national plan and in the event of any dispute the regional plan will take precedence.”

Explanatory notes

This amendment seeks to provide an arrangement whereby the preparation of a single plan for an estuary is delegated to a single organisation by both the MMO and equivalent body (for example, Marine Scotland). It does not delegate the responsibility for approving this plan which will remain the province of the respective agencies.

The amendment seeks to ensure that the organisation preparing the plan is appropriately governed and is able to engage effectively with the wide range of stakeholders with both statutory and non statutory interests in it. Once the single plan is prepared, the respective agencies on either side of the border will be responsible for consents within their area. The preparation and existence of a single plan enables discussion and agreement on shared objectives for the area, while the application of planning remains unique to, and consistent throughout, each national area.

Solway Firth Partnership

29 June 2009

LETTER TO DEFRA FROM SOLWAY FIRTH PARTNERSHIP

Dear Mr Benn

Integration of the UK Marine and Coastal Access Bill and the Scottish Marine Bill on the Solway Firth

Thank you for your recent reply to the Rt Hon David Maclean in response to a letter forwarded on our behalf outlining concerns regarding integration of the UK Marine and Coastal Access Bill and the Scottish Marine Bill on the Solway Firth. Given the time taken to receive a response and the very short time remaining in which to influence the UK Marine & Coastal Access Bill, we have decided to respond to you direct.

Solway Firth Partnership remains deeply concerned that there is insufficient provision for integrated planning and management of cross border areas such as the Solway Firth in the UK Marine and Coastal Access Bill as it currently stands and we are not reassured by your response to the concerns we have highlighted.

Further, Lord Wallace of Tankerness raised concerns regarding the proposed approach to cross border planning in the House of Lords and received a commitment that Defra officials would give this issue further consideration and would meet with concerned parties. We have since tried to convene a meeting between officers of Defra, the Scottish Government and key members of Solway Firth Partnership here on the Solway and are disappointed that Defra has been unable to commit to this.

As we have not been given the opportunity to discuss matters in person as we would have preferred, and our concerns therefore remain unaddressed, we have drafted an amendment clause to the UK Marine and Coastal Access Bill which we have circulated to our local MPs (enclosed).

Detailed response to Defra letter to the Rt Hon David Maclean, June 09

We welcome the joint publication of a shared set of high level objectives which will form a basis for the new Marine Policy Statement. Realising these common objectives in a cross border firth such as the Solway could be best achieved by means of a common, single plan for such an area. Surely this approach would demonstrate the co-ordination which you agree is of such importance?

It is true to say that a great deal of cross border collaboration takes place at present and we are heartened by recognition of the need for this to continue. However, the informal and voluntary arrangements which exist at present can only go so far and need to be developed to meet the demands of a statutory planning system. It is not sufficient to say that, “Nothing in the Bill will prevent such (informal) arrangements continuing...” The Bill must recognise, strengthen and actively support joint planning and management mechanisms.

We welcome the collaborative approach which is being taken at ministerial level through the Joint Ministerial Committee and related forums. The principles which underlie this approach must be translated into equivalent mechanisms to deliver collaboration at regional and local level.

We would be interested to hear more about the way in which you would anticipate a concordat working between administrations. It is not possible to evaluate the likely effectiveness of this suggestion on the basis of the information provided.

We do not accept that, in principle, joint planning cannot be delivered in legislation and would cite the example of the separate provision made for the Solway Tweed River Basin District (RBD) which straddles the English–Scottish border. Under the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004, the Environment Agency and the Scottish Environment Protection Agency (the Agencies) were given a number of new duties and responsibilities. In the Solway Tweed RBD, the Agencies must work jointly to deliver a coordinated approach to river basin planning in the District. In particular, the Agencies must act together to produce the following:

River basin characterisation;
Monitoring programme;
Statement of Steps and Consultation Measures;
Significant Water Management Issues;
Environmental objectives for each water body and a summary Programme of Measures (PoMs) to be applied to achieve those objectives;
A draft River Basin Management Plan; and
A River Basin Management Plan.

In addition, The Scotland Act 1998 (Border Rivers) Order 1999 provides that functions relating to the management of salmon, trout, eels and freshwater fish in respect of the whole of the River Esk remain with UK ministers. This provision enables an offence under the Order to be prosecuted by either English or Scottish courts without regard to the side of the border on which the offence was committed. Also, the Salmon & Freshwater Fisheries Act 1975 gives the Environment Agency water bailiff powers in Scottish parts of the inner Solway.

We note your comments regarding clarity in identifying the responsible planning authority and would draw attention to the fact that our proposed amendment does not compromise this.

While it is noted that “constructive engagement between all the administrations (in the Irish Sea)” will be required, this is not fostered in the UK Bill as it stands. While it may not be desirable to impose joint planning requirements across administrative boundaries, the Bill at present does not provide sufficient scope for this, even when two administrations want to work together.

Your comments regarding issue driven cross border working, such as in relation to Environmental Impact Assessments, as a means of delivering joint working at an Irish Sea level are, we feel, particularly weak. This is typical of the reactive and piecemeal marine planning approach we are trying to move away from and does little to foster the proactive, strategic and integrated approach we seek to establish.

We recognise that the anticipated Inshore Fisheries and Conservation Authorities and Inshore Fisheries Groups will work in quite different ways. This is inevitable given the long history of Sea Fisheries Committees in England and the absence of equivalent organisations in Scotland. However, what is important is that these organisations work together towards shared objectives in an area such as the Solway and the means to achieving this should be via the marine planning process. There should be cross working between fishery management groups in England, Scotland, the Isle of Man and Ireland and all must actively contribute to development of marine plans for the areas in which their members having fishing interests.

In support of good governance and best value for public funds, we also need to explore better joint fishery enforcement measures on the Solway.

Finally, we remain concerned that areas such as the Solway cannot be accurately and efficiently assessed in terms of potential Marine Protected Area designation unless survey work is carried out, and assessment criteria applied, Solway wide.

We trust you will give our concerns your urgent consideration.

Please feel welcome to contact us if you have any queries, would like any further information or would like to arrange to meet.

Thank you very much for your assistance.

Yours sincerely

Gordon Mann
Chairman
Solway Firth Partnership
Pam Taylor
Project Manager
Solway Firth Partnership

Solway Firth Partnership

6 July 2009


Footnotes:

1 As defined by the Convention on Biological Diversity (Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity) (2000).

2 Safeguarding our Seas: A Strategy for the Conservation and Sustainable Development of our Marine Environment (2002); Review of Marine Nature Conservation (2004).

3 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998).

5 Statistics for 2007.

6 Code of Good Practice for Scottish FinFish Aquaculture’ (2006) see http://www.scottishsalmon.co.uk/aboutus/organisation.asp

7‘Building a Sustainable Future for Aquaculture: A New Impetus for the Strategy for Sustainable Development of European Aquaculture’ (COM (2009) 162)

8 Green Paper: Reform of the Common Fisheries Policy (COM (2009)163.final).

9 A Strategic Framework for Scottish Aquaculture (2003) The Scottish Executive, The Stationery Office, Edinburgh.

10 A Fresh Start: The Renewed Strategic Framework for Scottish Aquaculture (2009) The Scottish Government, Edinburgh

11 The Government Economic Strategy (2007) Scottish Government, Edinburgh.

12 Sustainable Seas for All (2008) Scottish Government, Edinburgh.

13 There is an existing Scottish Fish farms Annual Production Survey undertaken by Marine Scotland (see http://www.marlab.ac.uk). The oversight and reporting approach used by the Food Standards Agency in respect of the Local Authorities delivery of food safety services is a relevant model for comparison.

14 as introduced to Scottish Parliament on 29th April

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