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DEFINING MARINE BOUNDARIES FOR FISH FARMING: CONSULTATION PAPER

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DEFINING MARINE BOUNDARIES FOR FISH FARMING

INTRODUCTION

1. This consultation paper seeks views on Scottish Ministers' proposals for the designation of marine boundaries in coastal and transitional waters, as defined in the Water Environment and Water Services (Scotland) Act 2003 ("the WEWS Act"), for marine fish farming development. The paper contains a draft Scottish Statutory Instrument ( SSI) with a Schedule describing the proposed areas the relevant planning authorities would be responsible for as recorded on the map in the CD Rom referred to in the draft SSI; an overview of the methodology used to construct the boundaries; and maps of areas where anomalies to the proposed methodology were identified. It also contains an overview map of Scotland. The paper invites consultees to consider a number of key questions and seeks their views on the main issues.

2. We are consulting on a further matter in this paper. In the 2000 consultation paper, The Extension of Planning Controls to Marine Fish and Shellfish Farming, the Executive consulted on the extension of planning controls out to the 12 nautical mile limit. It is the Executive's intention to extend planning powers to the territorial boundary ie to 12 nautical miles through the forthcoming Planning Bill. This paper seeks views also on what issues should be considered in extending the boundaries to the 12 mile limit.

BACKGROUND

3. The necessary legislative framework for the extension of statutory planning controls to marine fish farming is provided by Section 24 of the WEWS Act. These planning controls will cover the marine waters defined in the WEWS Act as coastal and transitional waters ( i.e. out to the 3 nautical mile limit). Both finfish and shellfish farming will be subject to the new planning controls.

4. One of the main aims of extending planning controls to marine fish farms is to allow for more local control over this form of development. It is therefore necessary for those authorities charged with these statutory powers (including all relevant local authorities and the Loch Lomond and the Trossachs National Park when exercising its planning functions) to be aware of the geographical areas in which they are to exercise the controls.

5. We are not aware of any previously established formal or legal marine boundaries between local authorities. Indeed, in Scotland, the Court of Session has ruled that planning control is limited by mean low-water mark of spring tide: Argyll and Bute District Council v Secretary of State for Scotland 1976 Session Cases 248, 1977 Scots Law Times 33. Therefore to ensure that relevant authorities are able to fulfil their statutory obligations, we see the statutory designation of planning authority marine boundaries as an essential element in the introduction of statutory planning controls for marine fish farming.

6. Section 24(6) of the WEWS Act makes provision for Ministers to allocate, by order, responsibility for planning controls of marine fish farms in transitional and coastal waters to particular planning authorities. When implemented this will give planning authorities specific jurisdiction in relation to fish farm developments within the amended meaning of fish farming in section 26 of the Town and Country Planning (Scotland) Act 1997 (special provision which applies only to marine fish farming). A draft of the statutory instrument bringing the marine boundaries into force can be found at Annex A. Following consultation, a statutory instrument will be laid before the Scottish Parliament for consideration by the affirmative resolution procedure, meaning the draft SSI has to be approved by the Scottish Parliament.

7. The Executive is seeking to define the spatial limits of individual authorities' responsibilities within coastal and transitional waters, whilst paying due regard to the Scottish Adjacent Water Boundaries Order 1999 ( SI 1999/1126): delineating the boundary between Scotland and England. Links to relevant legislation and associated documents can be found at Annex B. An Overview Map of Scotland can be found at the end of this paper.

The 2004 consultation paper and responses

8. In October 2004 we published the Consultation Paper Extending Planning Controls to Marine Fish Farming. That paper set out proposals for the introduction of robust and workable planning controls implementing section 24 of the WEWS Act. The paper contained a question asking what issues should be considered when defining planning authority boundaries. Our proposals relevant to planning authority marine boundaries can be summarised as follows:

  • When defining seaward boundaries in the context of marine fish farming, established boundary setting techniques would be taken into account.
  • The need for periodic review as part of any changes in local authority boundaries.

9. Subsequently, Extending Planning Controls to Marine Fish Farming: Summary of Responses was published in June 2005. The main themes which emerged relating to planning authority marine boundaries were as follows:

  • Many respondents suggested that boundary lines should take into account practical considerations, such as the current position of marine fish farms and elements of the water environment, rather than just extending current boundaries into the sea, or by drawing mid-points.
  • Boundaries in loch systems in particular were highlighted, with the suggestion that it may be more appropriate to have entire lochs placed under one authority, or a system of co-operation so that applications are considered by all bordering authorities.
  • Some respondents suggested that the work on boundaries should be linked with SEPA's work on River Basin Management Planning boundaries.

10. The comments made were considered as we prepared the remit for the research into the draft boundaries. We considered that although it was suggested that we should not just extend current boundaries into the sea, or by drawing mid-points, these were the most practical ways of preparing such boundaries. We also noted comments relating to loch systems being put under a single authority. While we can see the merit in this approach, we considered that this would be an issue we would consider through other methods. We are grateful to those stakeholders who have engaged with us to date and particularly to the United Kingdom Hydrographic Office ( UKHO) for all their help in formulating the marine boundaries.

METHODOLOGY FOR DETERMINING BOUNDARIES

Determining the Contractor

11. On approaching the challenge of identification and delineation of planning authority marine boundaries, we have taken the view that, as the boundaries are the first foray into preparing such marine boundaries in Scotland, it is essential that established boundary setting techniques would be taken into account. It was also recognised that this is a complex and, potentially, sensitive matter and therefore we needed to engage a contractor with a proven track record in providing robust boundary information in the marine environment. We therefore commissioned the UKHO to prepare draft boundaries for consultation.

Determining the boundaries

External boundaries

12. The WEWS Act provides for planning authorities to have statutory planning powers within coastal and transitional waters i.e. out to the 3 mile limit. Section 3(9) of the WEWS Act defines the "3 mile limit" as "the limit consisting of a line every point of which is at a distance of 3 miles on the seaward side from the nearest point of the baseline (see paragraph 14 below) from which the breadth of the territorial sea of the United Kingdom adjacent to Scotland is measured; and "miles" means international nautical miles of 1,852 metres." The proposed planning authority marine boundaries therefore extend to the 3 mile limit.

Geographical Coverage

13. Marine fish farming has mainly developed along the west coast of Scotland and in the Northern Isles. There is therefore an argument, expressed in response to Extending Planning Controls to Marine Fish Farming, that planning authority marine boundaries should only be defined where there are marine fish farming developments. We considered this option but took the view that marine boundaries should be derived for all authorities with a seaward or estuarine boundary and instructed the UKHO to undertake work on this basis. We have taken this view as it allows for a consistency of approach across all Scottish waters and ensures that authorities have the powers in place should there be any expansion of the fish farming industry. However, it should be recognised that Scottish Ministers introduced a presumption against further aquaculture development on the north and east coasts in 1999. This was re-iterated in Locational Guidelines for the Authorisation of Marine Fish Farms in Scottish Waters which was published in January 2003.

14. The territorial baseline around Scotland is the data set from which the breadth of the territorial sea of the United Kingdom, adjacent to Scotland, is measured. The baseline is formed by the low-water line along the coast and a series of straight baselines. These straight baselines are required in areas where the coastline is deeply cut into, where there is a fringe of islands along the coast or where the coastline is unstable. Waters on the landward side of the territorial baseline are termed internal waters. This means that around the Minch and the Sea of Hebrides, as the 3 mile limit is measured from the baseline, it results in the outer limit of waters attributed to local authorities in these areas extending further from the shore than 3 nautical miles and at times reaching more than 15 nautical miles.

Question 1: Are you content that marine boundaries should be defined for all relevant waters adjacent to Scotland?

Planning authority marine boundaries

15. The boundaries dividing water space ascribed to individual authorities have been generated using the fundamental principle of equidistance between the opposite or adjacent coastlines of neighbouring authorities. This process has made full use of all islands contained in the Ordinance Survey ( OS) data provided to the UKHO. However, in all cases, the UKHO charted low water line has been used as the base line from which median lines between authorities are generated. Further technical details on the method used for determining the inter-authority boundaries can be found in Annex C.

16. In a number of cases the definition of marine boundaries was made more complicated by historic extensions of local authority boundaries into the marine environment. Although this is evident at Inverclyde, Fife, Shetland, Falkirk and Aberdeen City, it is only at the former two that this made an impact on the boundary designation and the effects of this are described below.

17. A number of anomalies arose where the OS coastline data did not correspond exactly to the coastline data held by the UKHO. The UKHO low waterline is the data set used to define all maritime spaces claimed by the UK and is the definitive source of data for maritime delimitation, whilst the OS boundary data is the most recent representation of local authority boundaries. To marry these two sets, UKHO used its low water line data to generate the boundary median lines, but then edited the median lines to snap to the OS coastline at the points where the median lines reached the local authority land boundary terminus. Further editing of the median lines was required in the cases detailed below. In all instances, a consistent approach has been adopted.

OUTCOMES

18. Although the Executive sought to be consistent in the methodology for preparing the boundaries, this led to a number of apparent anomalies where a degree of judgement in determining the marine boundary was necessary. These are identified below and your comments on these individual cases are sought.

Scotland/England boundary adjacent to Dumfries and Galloway

19. There was a slight anomaly evident along the Scotland/England boundary in the Solway Firth, off the coast of Dumfries and Galloway. The established boundary, as set out in the Scottish Adjacent Waters Boundaries Order 1999 ( SI 1999/1126), crosses OS-designated land (see following map). As the Adjacent Waters Order defines the Scotland-England boundary in statute, it was considered that the boundary contained in that Order should form the southern Dumfries and Galloway marine boundary. The Dumfries & Galloway southern boundary line can be seen in the map on the following page.

Inverclyde Council boundary adjacent to Greenock

20. Adjacent to Greenock, OS data marks out the Inverclyde Council boundary as extending into an area defined by the UKHO as "marine". This is because Inverclyde Council historically contains an area of waters within the Clyde Estuary. When the marine boundary was drawn initially, this led to a small part of the administrative area of Inverclyde being assigned to Argyll and Bute. We did not consider that this was acceptable and therefore so that the entirety of the administrative area of Inverclyde Council was assigned to Inverclyde, the median line was amended to follow the Council boundary, before returning it to its original median path. The initial and revised median line can be found below.

Map 1 - Dumfries and Galloway - English Border

Map 2 - Inverclyde Initial and Revised median lines

Map 3 - Firth of Forth Initial and Revised median lines

Fife Council boundary adjacent to Rosyth

21. Adjacent to the naval base at Rosyth, OS data marks out the Fife Council boundary as extending into an area defined by the UKHO as "marine". This is because Fife Council historically contains an area of waters within the Forth Estuary. When the marine boundary was drawn initially, a small part of the administrative area of Fife was assigned to the City of Edinburgh. We did not consider that this was appropriate and therefore, so that the entirety of the administrative area of Fife was assigned to Fife for this purpose, the median line follows the Fife Council boundary, before returning it to its original median path. The revised median line can be found in the maps above.

West Lothian/City of Edinburgh Council boundary at Hopetoun Bank

22. The boundary between West Lothian and the City of Edinburgh at Hopetoun Bank (see map above) has been modified to overcome a major discrepancy between OS and UKHO coastlines. The feature in the OS coastline extending northwards just west of Port Edgar does not feature at all on UKHO charts. With regard to the same map above, it can be seen that the West Lothian/City of Edinburgh Council boundary has been amended by fitting the median line around the eastern side of Hopetoun Bank. This is again to ensure that the OS boundary data is adhered to, and Hopetoun Bank remains under West Lothian Council administration.

Map 4 - Inverclyde North Ayrshire Boundary

North Ayrshire/Inverclyde Council boundary

23. A similar anomaly to that mentioned in paragraph 22 occurred at the boundary of North Ayrshire and Inverclyde Councils. This has led to a small amendment to this boundary which can be seen in the above map.

Question 2: Do you have any comments on the way in which these anomalies have been resolved?

Loch Lomond and Trossachs National Park

24. The coastal area of the Loch Lomond and the Trossachs National Park ( LLTNP) lies within Argyll and Bute Council's administrative area. As the authority responsible for development control, it is intended that the National Park will also have responsibility for marine fish farms in waters off its coastal boundary.

25. The UKHO therefore constructed a median line, based on the LLTNP coastal boundary, so that the marine boundary extended from the terminal point between LLTNP and Argyll & Bute Council in Holy Loch, down into the Clyde, and then equidistant between the east and west shores of Loch Long before snapping to the land terminus point of the LLTNPOS boundary, on the east shore of Loch Long. A map of the proposed boundary can be found on the following page.

26. We consider that the current provisions in section 24 of the WEWS Act are not sufficient to allow Scottish Ministers to designate an area of marine waters to the National Park thus allowing it to exercise planning functions for marine fish farming.

Map 5 - Loch Lomond and Trossachs National Park Marine Boundary

27. We intend to remedy this by promoting an amending provision through the forthcoming Planning Bill. As an interim measure, Argyll and Bute Council will be responsible for planning matters, including planning applications for finfish and shellfish farms within the area agreed as the marine boundary for Loch Lomond and the Trossachs National Park.

Question 3: Do you consider that the National Park Authority marine boundary is appropriately defined?

EXTENSION OF PLANNING CONTROLS TO THE TERRITORIAL LIMIT

28. As mentioned at paragraph 2, this consultation paper also covers a further issue. The Executive intend to extend planning controls out to the 12 nautical mile (M) limit. This change will replace three control systems (ie the new statutory controls to the 3M, and the Crown Estate development consents and Shetland works licences to the 12M) with a single regime based on the terrestrial planning system. However, we consider that powers to extend boundaries to 12M are not contained within section 24 of the WEWS Act. In light of this we are introducing an amendment in the forthcoming Planning Bill, the effect of which will be the extension of planning controls out to 12M.

Question 4: What issues should we be considering in implementing the extension of the boundary for marine fish farming to the 12 mile limit?

CONCLUSION

29. We have sought to identify the key issues raised in producing a coherent and comprehensive set of planning authority marine boundaries. We are of course interested in the views of consultees on any other aspects of marine planning authority boundaries that are considered to require further thought or amendment. Should the provision of a CD containing GIS compatible information setting out the authority boundaries help you in this consideration, please contact Graham Robinson on 0131 244 7063 for further information.