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Agenda item 3 is our second evidence-taking session on the Marine (Scotland) Bill. The purpose of the session is to hear from a range of stakeholders. I welcome our first panel of witnesses, who are Captain Jim Simpson, chair of the Scottish Coastal Forum; Lloyd Austin, head of conservation policy with Scottish Environment LINK; Patrick Stewart, the bill consultant with the Scottish Fishermen's Federation; Professor Phil Thomas, chairman of the Scottish Salmon Producers Organisation; and Ian Burrett of the Scottish Sea Angling Conservation Network. We will move straight to questions.
Does the panel have views on how the membership of the marine planning partnerships ought to be derived? We heard evidence from officials a week ago that implied that they are fairly relaxed about how the partnerships are comprised, provided that people can find an arrangement that suits them at the local level. However, last week, when we took informal evidence in Oban, we heard that there should be consistency throughout Scotland in relation to the size of the partnerships and the membership. I am interested in your views on those aspects.
I thank the committee for allowing us to present evidence.
I join Phil Thomas in thanking the committee for hearing our evidence. I reiterate his point about the importance of our marine resources. From an environmental point of view, Scotland's marine environment is outstanding and we support steps to do more to protect it and ensure its recovery.
We feel that supplementary guidance is required to determine the make-up of the marine planning partnerships. We know that the bill is attempting to be permissive rather than restricting membership, but we would welcome additional information on how the partnerships should be created. We are concerned about how existing stakeholders and members' groups such as our own should be incorporated into the partnerships, and how the statutory functions should be accommodated in any new regime.
Thank you for the invitation, convener. I associate myself with the remarks about the importance of the project: we should not underestimate it.
I echo the thoughts of the other panel members, and, as sea angling has had a very poor voice in Government circles, I thank the committee for the opportunity to give evidence.
Slightly different positions are emerging from what has been said, but the broad consensus is that greater clarity is needed about leadership and the framework, and that guidance on that is needed, which should not be too prescriptive and should allow local flexibility. Unless you disagree violently, we will take that as a given.
We are very clear about the issue. As you know, we have campaigned for a marine planning system for many years. If the purpose of the marine planning system is known, if people accept the principle of the three-tier approach of a UK marine policy statement, a national Scottish plan and a local regional planning system, if we put in place the marine objectives—the Scottish Government recently signed up to the UK high-level objectives—and if we make it clear to partnerships that what is important is having a planning system to deliver those objectives, that will focus the minds of the people in partnerships, whether there are 15 or 50 of them, on the clear objectives.
It should not be forgotten that statutory duties will be imposed on the partnerships, with which they will have to comply. Those duties will be imposed not just by the Scottish Parliament, but by Europe, through the marine strategy framework directive. If people sit around talking without doing, they will quickly be held to account.
To answer Peter Peacock's question in a slightly broader way, marine planning of itself is extremely important. It comes down to how you find the best mechanism for putting marine planning in place. Lloyd Austin commented on the three-tier approach, which I think that everyone would broadly accept. The difficulty is how you get those tiers to intermesh in a way that makes them efficient and effective. You have to have a local consultation and local and national interaction with stakeholders. To some extent, that process is almost inevitable. The big issue for me is how you lead and structure that process.
A tremendous amount of theoretical work has been done with the likes of the sustainable seas task force, but the devil is in the detail, especially around regenerating biodiversity, regenerating the inshore stocks, both commercial and recreational, and the make-up of the Scottish marine regions. There should be consistency with the UK marine bill. For example, the sea fishing committees are being replaced with an inshore fishing and conservation authority—there is mandatory membership for conservation and sea-angling bodies. The current Scottish inshore fisheries groups do not give sea anglers access to them.
I agree with the points that Lloyd Austin made about local participation, which is vital. The plans will not work unless there is local participation, which has to reflect the area. As Lloyd Austin said, we could be talking about a big group or a small group; that will depend very much on the marine regions. I stress that the relationship between the regional marine plans and the national marine plan is the key. Our view is that Marine Scotland should drive the regional planning process. That has to be done in close co-operation with the partnerships. Through our network, Marine Scotland could work with the local stakeholders. We believe firmly that the process has to be driven by Marine Scotland.
What do you see as the ideal size of a marine region? We visited the Sound of Mull region and the Clyde pilot, which are two completely different sizes of project. Although the Clyde project would claim to take in local involvement, given its size, it cannot take in the same level of local involvement as in the Sound of Mull. What would be the ideal size? Where do you stop or start with local involvement?
I have been involved in both the Clyde and the Firth of Lorne areas and I do not see any difference in local involvement. The involvement sorts itself out in relation to the scale of the area. I have found that in the Clyde the voices that need to be heard are heard. You certainly cannot say that they are not heard in the Firth of Lorne.
I agree to a certain extent with what Patrick Stewart said. There is no specific answer to John Scott's question. The ideal partnership size is dependent on local circumstances.
By ecosystem, do you mean something that, in essence, is similar to a river catchment area?
Yes—it would be a marine equivalent to catchment planning on land. You would consider a biogeographic entity that is biologically, geologically and geographically a logical area.
That would allow integration with land-based systems.
Absolutely. It would allow a kind of zipping of integrated coastal zone management, involving river basin management plans and terrestrial planning systems.
I slightly disagree with Lloyd Austin. The question of what the areas would look like is difficult. Their size could and should vary from place to place. However, it is clear that the areas will not align with local authority boundaries—with the obvious exception of the islands.
Is that an argument for doing away with 32 local authorities in Scotland?
I would not wish to be led down that line of argument.
We have tried that one.
The Scottish Coastal Forum is working with the Scottish Government to determine the options for potential marine regions. In March, we held a successful workshop at which many people from all around the coast offered many opinions about the marine regions. We are now working through the results of our research, and we hope that they will be available over the summer. We welcome the Government's undertaking that it will consult on the final options. I cannot say too much about it because the work is still in progress. However, the areas were larger rather than smaller. We were not dealing with very small areas; we were dealing with the larger firths and with areas that were much larger than even the Firth of Lorne.
I had two questions. The first was whether it would be possible to define either ecosystems or marine regions to everyone's satisfaction, but I think that I have got the answer to that.
Somebody mentioned that the regional groups might be locked away in rooms somewhere, doing their own thing, and that they might be large or small bodies. We feel that Marine Scotland should set the parameters within which those groups can operate, so that they do not go off on a tangent.
Can you give me an example of the parameters that might be set? We seem to be talking in generalities.
I know that this is a ludicrous example, but it is the sort of thing that I am thinking of. If a marine planning partnership wanted to build a power station on the coast within its area, but Marine Scotland had a national policy that followed the Government's policy on power production, the partnership would not even start to talk about that because it would know that it was outwith the guidelines. There would be an overall set of guidelines under which the marine planning partnerships would operate, within which they could undertake their own local planning.
Does the bill not cover that satisfactorily?
The relationship between the national and the local is not quite satisfactory at the moment.
The most important things are the setting of the marine objectives and the purpose of marine planning. Those underlie the process in the bill. I highlight the parallel—which Phil Thomas mentioned earlier—with the way in which SEPA has led the area advisory groups on the water framework directive. SEPA has brought the groups together and has said, "Right. The purpose we're here for is to provide the local interpretation of river basin management planning." In the marine situation, I would expect Marine Scotland to explain the nature of the UK marine policy statement—if the Scottish Government signs up to that—and the thinking behind the national Scottish plan. It would also interpret national marine ecosystem objectives at a local level, and so on. Local decision making would be set in that context.
I have a quick question for Captain Simpson, following on from Alasdair Morgan's question. Would you be reassured if Marine Scotland took on the role that has just been described by Lloyd Austin?
Yes. We would be quite happy with that.
When the committee took evidence from Government officials, I was struck by the question from Mr Peacock about how the regional plans would deliver national objectives. I do not think that the committee received a clear answer to that question, but I have been thinking about it. This is not yet the view of the SFF, but it is something that we are considering. Perhaps Marine Scotland should lead the regional bodies to ensure that there is consistency and that each region plays its part in delivering the national plan. Whether or not there is a UK marine policy statement, some thought should be given to a Scottish policy statement.
When you say "lead", do you mean chair?
Yes.
There seems to be some disagreement about the bill's compliance with the Aarhus convention on access to information, public participation, access to justice and environmental matters. Scottish Environment LINK raised that issue in its evidence. When officials were asked about that last week, they suggested that the bill is compliant with the convention. Scottish Environment LINK has concerns about appeals not only against the marine plan but against licensing decisions. Perhaps Lloyd Austin could set out the detail of those concerns and what it would take to rectify them. Given what we heard from the other witnesses about their concerns, they may wish to comment, too.
There are two issues here: appeals against the marine plan, which relates to section 13; and appeals against licensing and other decisions made in accordance with the marine plan. On the first, we think that judicial review of other decisions by Government may fail the third part of the Aarhus convention—the access to justice part—although, as we say in our evidence, that matter is subject to legal debate. As in the case of any legal debate, I suspect that one could find lawyers who support each side of the argument.
I suspect that there will be consensus around the need for, and the benefit of, greater clarity, but that there will be less consensus around the notion of what amounts to a third-party right of appeal against licensing decisions. However, I would certainly welcome other comments.
I underline what I said about a third-party right of appeal applying to parties with sufficient interest, as defined in the Aarhus convention. That is not the same as all and sundry, which is what a third party is often interpreted to mean.
As I understand it—I have just found the relevant part of the bill—section 13 will allow an appeal to be made against a plan, but only for a procedural reason and not because of the content. One may feel that, in a democratic society, that is too restrictive.
Does Peter Peacock want to ask a question?
I think that Professor Thomas has a comment to make.
It is a very brief one. I usually try to keep as far away from lawyers as I can—Patrick Stewart excepted, of course. There is an important issue at stake. It has been touched on, but it needs to be crystallised.
The SFF has described the territory of law that we are discussing as "a legislative jungle", to which the bill could add. I find it quite difficult to sort out how the current statutory framework might fit with the new statutory framework that is being created. I am thinking of things such as inshore fishery groups, coastal zone management, port authorities that have independent statutory rights, indicative fish farm plans, offshore energy planning requirements, licensing arrangements and terrestrial planning arrangements in parts of local authority areas that abut the marine environment. Can you help me? Is it clear to you how all those elements fit together in the statutory framework? Is there a hierarchy? Should marine planning partnerships be the superior bodies, or should there be equality?
Which will take precedence in law?
It is a bit of a jungle at the moment and I see no sign of the rainforest being cleared. We are making a new start and should do so as simply as we can, with one planning authority for the marine environment. Obviously there must be arrangements at the shore, to zip together the terrestrial and marine systems, but everything that can be done within the competence of the Scottish Parliament to plan in the marine environment should be in one body, with one set of rules. I would be interested to hear an argument for making the system more complicated than that, which the bill does. For example, it says that local authorities may retain the terrestrial planning system that applies to marine fish farms. In our view, that is utter nonsense. We are making a new start—let us start as we mean to go on, with a sensible, straightforward system.
What does that mean for the likes of inshore fishery groups? Is the implication of what you are saying that current coastal zone management should be consigned to history and replaced by a new system?
I can deal with the fisheries side quite simply. The bill has nothing to do with the recovery or management of fish stocks—that comes under the common fisheries policy and the associated international and national legislation. Inshore fisheries come under that heading. It is clear to me that the management of fisheries must work closely with and be part of the management of the marine environment, but conceptually it is different. There will be marine protected areas that are designed to achieve the recovery of fish stocks; such zones exist now. They are quite different from marine protected areas that are designed to protect or ensure the recovery of the marine environment.
I will comment specifically on aquaculture—marine fish farming. As Patrick Stewart said, everything must come within one framework. At the moment, the arrangements, regulations and planning process for fish farming are horrendous—they are extremely complex and bureaucratic. That point was identified in the consultation document that led up to the bill. Unfortunately, the bill has snatched defeat from the jaws of victory, because it makes the position even more complex.
Does your argument extend to the shellfish growers? Where do they fit in? Walter Speirs has made the point that they do not appear to fit in anywhere.
I think that the shellfish situation will be pretty much the same as the finfish situation. I do not see too much distinction between the two. However, there may be other sorts of marine activity—some, frankly, as yet unannounced. I am thinking of seaweed production, for example. At the moment, there are a few cases of that which are mainly land based; nevertheless, the opportunities and technology exist to grow seaweed offshore and such developments will come under the licensing system. We could end up with a seaweed farm coming under the marine licensing system while the finfish farm that is right next to it comes under the Town and Country Planning (Scotland) Act 1997. It seems to me that the systems are mutually incompatible.
I welcome your view on that.
This is an interesting point. We had a debate in Parliament just the other week about the importance of aquaculture to the Scottish economy, especially in rural areas. I understand from conversations that I have had with the SSPO that the Government was trying to find a compromise because, earlier in the consultation, there was disagreement between different parts of Scotland. As you mentioned, Shetland was a bit uncomfortable about things being run from the mainland. My understanding is that there is now general agreement around the proposals that you have come up with—that the activity planning consent should come through Marine Scotland but that, where local authorities want it, the licensing should be devolved to local authorities. Can you confirm whether that is now the industry's view?
Yes, I can confirm that we have put that to the industry in Shetland and that it is happy with that arrangement. You must understand that Shetland had a works licensing system way before the Town and Country Planning (Scotland) Act 1997 was in place. There is a history in Shetland of operating marine licensing, irrespective of the act.
Do the other members of the panel agree with the alternative proposals from the SSPO?
In simplifying and sorting out Peter Peacock's jungle and Patrick Stewart's rainforest, it is important to distinguish between the planning system and the licensing system. I will comment briefly on both.
Is that not slightly different from Patrick Stewart's view that a marine planning partnership that brings together the sea anglers, the fishermen, the fish farmers, the shellfish farmers, the recreational users and all the other interests is almost bound at some point to take a view on fish stocks and fishing, but that such issues should be nothing to do with the partnership and should instead be dealt with by the inshore fisheries groups? If I have understood that correctly, how do you reconcile those positions?
I am not clear about the question. If you are suggesting that that is what I would say, you are correct, but I do not see how that view conflicts with Lloyd Austin's comments on marine planning, which is ultimately about consenting to activity.
Just to clarify, I agree with Patrick Stewart that there is a distinction to be made between the planning process, which I believe should be all-encompassing in its approach to the marine resource and environment and its examination of what we do with them, and individual sector-based consent procedures, some of which will be covered by the marine licensing system, existing fisheries mechanisms such as inshore fisheries groups, existing Scottish Government processes such as those for renewable energy and so on. For example, terrestrial systems cover development planning, river basin management planning and so on but, although such systems take a holistic approach to what those responsible want a particular area of land to look like, there are also separate and individual decision-making processes to take into account.
Forgive me for pursuing this issue, but we are also talking about a spatial planning concept. What if, for the sake of argument, the marine planning partnership in a particular part of Scotland took the view that the area should be closed to fishing? That would be a planning view; in other words, it relates to the spatial concept of the use of that marine resource. In such circumstances, would the inshore fisheries group have to operate within that framework?
Yes.
And you are quite comfortable with that.
I would not say that I am comfortable with it, but that is the way it will operate. The fisheries legislation and everything that flows from it will determine what you may catch, when you may catch it, what you may catch it with and, indeed, where you may catch it, but the marine planning system will say where you may not catch it.
The local marine planning partnership might say that, in a certain area, fishing should not happen or should be restricted in some way because of seasonal circumstances. If that proposal is consistent with national planning policies and so on and is signed off by the Scottish ministers as part of the regional plan, all decisions taken thereafter by ministers about fisheries, renewable energy and so on—or by Marine Scotland on marine licensing—should be in accordance with that plan.
I have a deal of sympathy with Professor Thomas's point, but I am trying to work out how his solution does not still give rise to certain problems. If you are saying, professor, that the actual licensing should be devolved to local authorities, which, under the bill, would be the Scottish ministers, unless that licensing is simply a rubber-stamp exercise, like the arrangements for television licences, will you not still get cross-boundary differences, potentially within one marine planning region?
No, I do not think so. The discussion that we have just had is illustrative of why Marine Scotland needs to lead those regional groups. We are talking about something that is extremely complex and needs a lot of resources and expertise to guide it.
The most obvious example is, I presume, at the boundary between Argyll and Bute and Highland, which might share a common marine region. Would you be quite sanguine about an aquaculture project at one place being allowed a licence, with another project one mile down the coast not being licensed, despite the two places being in the same marine region? That could come about simply because the two local authorities may take a different view about processing licences.
I do not think that it would come down to that. If they are operating the same process, that process would give rise to a consistent result between the two. The circumstances might well differ, so the applications would be judged according to a different set of criteria, but the process would be exactly the same.
You are effectively saying that you would expect a local authority simply to follow a flow chart. There is no discretion in that.
It would be inconsistent to have a process that varied from place to place. A licensing system must apply to the whole of the marine environment. Otherwise, there will inevitably be inconsistencies, and that would be illogical.
But different local authorities could demand different conditions; local authority A might state that it does not really like fish farms in its area, so it could insist on extra roads, nice lighting or whatever instead, whereas local authority B, just up the road, but in the same marine region, might not feel the same way and not put in the same conditions. You would be okay with that, would you?
That would come under the overall planning exercise rather than development planning. You must recognise that, distinct from the situation now, whoever does marine licensing in future would be working to a marine plan for the area. Some of the conflicts that you are identifying would be resolved in the planning process.
Some would be, but licensing can be done either by Marine Scotland or the marine planning partnership—in which case, licensing is standard throughout the region—or by the two councils within the same regional planning area. If there are two different licensing bodies, either the bodies must be able to make very different decisions or they must have no discretion whatsoever. In essence, that is the point behind Alasdair Morgan's question. If the two licensing bodies have discretion, presumably one licensing body could say, "No, we don't like this, so we'll attach lots of conditions", while the other might not. Would you be comfortable with that?
My preference would be for the marine licensing system to rest entirely with Marine Scotland—in my personal view, that would be easier to manage—but I recognise that there are substantial issues of local accountability for fish farmers as well as for the wider population in particular areas of Scotland. The system in the islands has historically worked and been seen to work, so people do not see much need for change, but there is not a consistent pattern across the whole of Scotland.
In our view, it would be best if the policy was delivered by the planning partnership, of which local authorities will be part. That would deal with the question of consistency across local authority boundaries. We must remember that, if local authorities are involved, a planning decision is quasi judicial and not political, so the question of discretion does not arise.
On a rather different topic, I have a question on the lack of data on the marine environment, which was highlighted in Scottish Environment LINK's submission. I am aware that the SACN is undertaking research following previous discussions with Government about the lack of data and that it is in the process of tagging sharks, rays and skate in the Solway this weekend as part of a project to increase the data that are available on threatened species. In light of the current lack of data, should the precautionary principle be included on the face of the bill?
I should say that the BBC was out filming with us yesterday for this weekend's sharkatag event, which will also be filmed live on breakfast TV on Friday.
Do you believe that, in the absence of data, the inclusion of the precautionary principle would strengthen the bill?
Yes. There has to be a precautionary approach.
As you might expect, I agree whole-heartedly with Elaine Murray's comment about the lack of data. That is one of the things about which we have made our view known. That said, we are pleased that the Scottish Government and all the various agencies are coming together to develop a science strategy and identify the new work that needs to be done. While it is good to identify that work, the most important thing is to provide the resources to get it done. The committee's predecessor, the Environment and Rural Development Committee, conducted an inquiry into the marine environment and the potential for legislation. It made strong recommendations about the need to resource marine science, survey work, monitoring and so forth. I certainly endorse those recommendations.
I know that Patrick Stewart and Phil Thomas want to speak, but I think that Liam McArthur has a question on this issue.
While fully accepting the basis of the precautionary principle and the consensus around it, I should point out that the marine renewables industry is finding that the more that they learn, the less they know. Where is the point at which you think you have enough data?
I certainly agree with your latter point. Quite a lot of the information that we have comes either from fishermen or from the type of work that is being carried out for environmental impact assessments by both the oil and gas industry and the renewables industry. I am not going to comment on the specific issue that you mentioned, but, in generic terms, it is important that the political decision makers make decisions in accordance with scientific advice. People can argue about whether that scientific advice is based on good data or good analysis of the data, but I think that it is important that the argument is had on a basis of the quality of the science and that the decision is made in accordance with sustainable development principles, including the precautionary principle. If you could put that in the bill, it would greatly improve it.
I think that we have moved on quite a bit from the original comments but, on the precautionary principle, I accept the difficulties. The phrase "precautionary principle" is like the phrase "democratic process" in that it means what it means to you rather than what it means objectively. We must resolve the difficulty that we face, though, because there is no doubt that the fishing industry that is exercising the public right of fishing on your behalf needs healthy and productive seas, which is what we want to achieve as a result of this process. However, I say to Mr Burrett that, although his concerns are serious and need to be addressed, this is not the forum to do that. His concerns must be addressed within the context of the common fisheries policy.
My view as a scientist is that there will never be enough data; we will always have to make decisions against a background of some uncertainty.
I thank our witnesses for their attendance. Any supplementary material that you would like us to consider should be with the clerks by 17 June, so that it can be circulated to members to inform the next evidence-taking session on the bill, which will be on 22 June.
Meeting suspended.
On resuming—
I welcome our second panel of witnesses—George Hamilton is the manager of the countryside heritage and national resources team at Highland Council; Colin Galbraith is the director of policy and advice at Scottish Natural Heritage; and Andy Rosie is the acting head of environment protection and improvement, north region, at the Scottish Environment Protection Agency. We will move straight to questions.
As the witnesses probably know, in a couple of weeks the committee will visit the Solway Firth to take evidence. In evidence this morning, witnesses have told us of the need to take an ecosystem approach; it was argued that a firth should be a single marine planning area. In the Solway, an obvious issue that arises is that the firth lies on both sides of the border. What sort of cross-border issues will have to be addressed? How can differences between the proposals in the Scottish and UK bills be resolved? In the Solway, the two pieces of legislation will operate together, but the local desire is that the Solway should be one marine planning area.
I will answer first, although I am not involved in the Solway. Our local partnership is the Moray Firth Partnership, so we do not have to deal with the England-Scotland border issues to which Elaine Murray refers. However, the Moray Firth area looks to us to be a potential marine planning area or regional planning area. We would therefore be looking for suitable and effective liaison between the regional planning area and the adjacent marine planning area. Such liaison would be important no matter where marine plans and regional plans were in place. There should be effective liaison and implementation.
Do you mean that that should be the case irrespective of whether a marine planning area crosses the border?
Yes.
We have already wrestled with this very problem in the river basin planning process under the water framework directive. We have a requirement to develop two river basin plans—one for the bulk of Scotland and one for the Solway-Tweed area, for which we share responsibilities with our colleagues south of the border. We have area advisory groups that deal with cross-border issues and reach consensus so that we can develop a plan that meets the needs of parties north and south of the border. That work may provide a template for the challenge that Elaine Murray raises.
Thank you very much for the invitation to give evidence.
Let us move on to scientific advice. At the end of the previous evidence session we talked about data. Do you believe that sufficient data are available to designate all types of MPAs under the bill? If not, what sort of data gaps exist?
I could perhaps have a go at answering that, to begin with.
With regard to data at, say, community ecology level, I presume that with climate change and communities already showing some sign of shifting, that might make the issue more complex. I would be interested to hear comments on that.
We face the same challenge in the terrestrial environment. A bit of thought still has to be given to mobile boundaries and how we might move with climate change. The reality is that if an estuarine area, for example, on the coast of Scotland is seen to be a good area now, it will probably still be a good area in 20 or 50 years, although it may be good for a slightly different community. In respect of ecosystem processes, we would argue that, for example, good nursery areas for fisheries will probably still be good in 20 or 30 years, albeit with some variation in the community. The question raises real issues. There are issues not only within Scotland but across the European Union and the whole of Europe that we still have to bottom out.
You said that you would have enough data to identify MPAs and you touched on one tiny bit of the criteria for designating an MPA. Can you say a bit more about the criteria that you think should be taken into account in designating MPAs?
What has been interesting in the thought process has been that, in essence, what we are doing in the bill—in relation not only to MPAs, but to the whole planning system—is something that has taken 25 or 30 years to do in the terrestrial environment. There has to be learning from the terrestrial experience for the marine areas, although we must accept that marine issues are different in scale and nature.
You will be more aware than most people of the controversies that often surround the proposed designation of any terrestrial or marine area. People think that designation might impinge on their particular interest or activity. Once you have taken into account the criteria that you have suggested, X number of sites will come out above the line, and you will say that they should be designated. Should they then definitely be designated? Should designation be an absolute on the basis of those criteria? How much discretion should exist?
People are central to the process, and we have learned over the years that they need to be involved at a very early stage. Where a user community is completely dependent on a healthy marine environment—as we heard earlier, encouragingly—we must involve people early in the process. We must also ensure that the data and information are objectively and scientifically collected. A system can be envisaged in which we identify potential MPAs and then select the most suitable based on science, while involving people in dialogue and discussion throughout the whole process.
Section 17 details licensable marine activities, and ministers may add to or change the list. Should any other activities require a licence under the bill?
A significant licensing process already covers a range of activities in the marine environment—for example, we use the controlled activities regulations in the river basin planning process. Around 95 per cent of the contamination of our coastal waters comes from activities on land, therefore the regulation of the coastal strip is already taken care of in many cases.
Should any activities other than marine energy extraction be added to the list?
I have a supplementary question. Renewables were mentioned. You will know about the power for the minister to designate a single process for renewables applications. What is your view on that proposal?
There is some merit in it. Where the same sort of activities will have the same sort of impact, it might make sense to develop a common approach from which the industry can learn the developing wisdom and design to take account of the issues. That could lead to certainty in the regulatory process, therefore it would be sensible.
I have a general comment on licensing. We do not see the need to add any specific licensing requirements, but we support the streamlining that was outlined earlier. There is an important bit of work behind that, on the environmental thresholds in the bill. We would like to be involved in the thought process on them, the result of which could have quite a bearing on what is licensable and what is not licensable. It would be good to have a realistic consultation period to allow us and others to comment on any proposals as they come along. We welcome the process that the bill lays out and highlight the environmental thresholds issue behind it, which will take a bit of further evaluation.
So you would like there to be a consultation in order to define or better define the activities that should be licensed as opposed to registered and vice versa.
Yes. I return to the fact that a whole raft of new ways of working and thinking will be introduced, which will take a little bit of development through the implementation phase. The details of what it is and is not appropriate to license in a particular way will need to be considered.
Notwithstanding that, do you have views on what an appropriate threshold might be?
No, not at this stage. That must necessarily come further down the line.
On renewables, I have been made aware of concerns about the requirements relating to the decommissioning of marine devices. Obviously, there is no advantage to be gained from leaving the seas cluttered with debris after wave or tidal devices have reached the end of their useful life, but there seems to be evidence from the oil and gas sector in particular that the creation of artificial reef shelters, for example, can benefit spawning grounds. Is there flexibility? Do we need to build flexibility into the licensing regime so that requirements exist, but reviews can, in due course, establish whether the removal of a device or the clearance of a site is in the best interests of the marine environment? Is that approach reflected in the bill as it stands or should we fix things through the bill or subsequent guidance?
We are still learning across the globe about the principle of reef creation. In particular locations in some circumstances it can be beneficial. From what I know of the matter, it very much depends on the structure that is deposited. Obviously, the chemical side must be dealt with separately, but in some circumstances artificial reef creation can be advantageous. We would like to consider the matter with the industry beyond the enactment of the bill to find out how things can best be done.
There may be another useful parallel with the controlled activities regulations, under which a licence will remain in force until the operator applies for a surrender. At that point, decommissioning and any clear-up that must take place can be talked about. The licence will remain in force until a conclusion is reached. Those arrangements are flexible enough to take account of the possibility of equipment staying put or being removed because it poses a risk.
You mentioned the regulations on controlled activities. Will you expand on their pros and cons? Are they fit for purpose? Can they take account of cumulative impacts and different sensitivities in different locations, or could they be adapted to do so?
The legislation is much improved from previous legislation, because it allows us to take account of activities that affect the water environment. The legislation's terrestrial application is expanded to dealing with impoundments and abstractions, which were not controlled in Scotland before.
Will you expand on the benefits of a tier of general binding rules and how that might add to the existing proposals? Would adding such a tier create additional costs?
The bill identifies a lower tier, which is more loosely defined as orders that might be issued to identify activities that do not require even registration. That approach is more informal.
I will move on to marine planning partnerships. All the witnesses were present during the earlier discussion about partnerships and their make-up in particular. Views were not unanimous, but I got the sense that people wanted clearer guidelines and leadership, clarity about where the resources to support all that would come from and a clear framework on what was and was not to be considered. Having heard that earlier conversation, do you have views to add?
I have been lucky enough to be a part of the water framework directive river basin planning process. I have chaired the west Highland area advisory group since its inception and I have now moved on to chairing the north Highland area advisory group. Such groups bring together a range of interested parties—people from local industry and commerce who work in the area and who represent activities there; port authorities; local authorities; and agencies such as SNH, the Forestry Commission, the Scottish Government's rural payments and inspections directorate and us.
We endorse Andy Rosie's comments. The experience that he has outlined has been productive for us and seems to bring the right people together. In principle, we welcome the development of that approach, as it provides local involvement and buy-in. We need a mechanism that allows for that in the implementation of the bill.
I agree with everything that has been said. Important points have been made this morning about the resources that will be available to partnerships, who will give a lead and the clarity of partnerships' objectives. Highland Council is keen to get involved in partnerships and sees itself as playing a lead role in some respects, although that is yet to be decided. If the structure that is already in place is ideal, I see little point in changing it, but it may not be ideal.
Andy Rosie described what happens in the area advisory groups. I understand that all of them are chaired by SEPA. We have heard arguments for Marine Scotland playing the equivalent role within the new framework. In light of your experience, do you commend that approach as a way of ensuring that there is clarity of purpose within the partnerships? I presume that you resource the area advisory groups. Do you commend the extension of that approach to the new framework?
I was going to make the point that you have just made—you are absolutely right. It would be sensible for Marine Scotland to lead and co-ordinate the marine planning partnerships. I suggested that the partnerships be aligned with area advisory groups—we would swap chairs with Marine Scotland when dealing with marine business.
My next question is directed at George Hamilton in particular, but I will be interested to hear other witnesses' comments. For many years, you have been involved in coastal zone management, producing indicative fish farm framework plans and dealing with inshore fisheries issues.
There are opportunities to build relationships within the marine planning partnership or regional areas. You spoke about the potential use of artificial reefs. That is a good opportunity to work with inshore fisheries groups regarding an MPA in connection with the science and research issue that has been identified.
From your experience, and given the interests of your local authority, you think that all that can be made to work quite satisfactorily and you see no particular conflict between the responsibilities of the different groups that operate.
I would not say that it is that clear. The proposals can be made to work, but they are entirely new, as has been said many times today. As time passes, operations will begin to bed in and will become the norm. Yes, the system can be made to work, but it will take a long time to get things organised properly. There needs to be a close working relationship between Marine Scotland, local authorities and stakeholders—we have been through that already this morning.
Experience from the area advisory groups that we have been involved in suggests that they are effective in identifying the issues that have to be addressed. We do not talk about individual activities or businesses, which would not be appropriate as there might well be vested interests around the table. However, we do talk about sites that must be improved, and we identify them when we are setting objectives. The regulatory process is a statutory process that has a fairness element built into it. Therefore, there is a public advertising process that is separate from the area advisory groups. There is no conflict of interest, and we are careful that nobody on the area advisory groups can use their influence to affect somebody else's interest. The system seems to be working very well, and I have not identified any conflict of interest that has cropped up in such a way so far. However, we are very much aware of the issue and it is important that it is addressed in the constitution and make-up of the groups.
Any local partnership grouping in which we have been involved has been very productive. However, to make a simple observation, it is quite time consuming to get consensus and find a way forward and the results are medium term. It is right to examine the medium-term and long-term resource needs to ensure that any local grouping is effective. Such groups work at a very significant level with regard to the implementation of what we are discussing today.
The size of groups is another issue that has concerned members. Our area advisory group has about 25 members and is made up of representatives. For example, if there are distilleries in the area, we have a representative from the whisky industry, but we do not have representatives from individual companies.
You are confident that, given time, patience and money, you can integrate the marine spatial element with the terrestrial planning element. You think that that can be achieved quite easily and you see no real problems with that. That will be an essential part of the overall ecosystem approach.
Indeed. The marine environment presents particular challenges, which are separate and different from catchment management. As was said earlier, the water can move always, whereas when you are managing a catchment, you start from the top of the hills and go out to the coastal zone. On the business of what size you have to be to take account of the ecosystem, you take account of the fact that many of the species that you are interested in spawn and have a planktonic phase and move over wide areas before they develop into larger entities. You take account of that when you are planning your system and sizing your management zones. There are definitely challenges there. It is up to all the agencies to work together closely and it is up to all the interested parties to make things work.
You heard the exchanges about the aquaculture industry's concerns about remaining within the remit of the Town and Country Planning (Scotland) Act 1997 and its preference that planning activities should be consented by Marine Scotland, with the possibility of licensing being devolved to local authorities. SEPA also has functions in relation to the regulation, licensing and monitoring of the aquaculture industry. I understand that there were discussions about whether those functions should remain with SEPA or be transferred to Marine Scotland. Mr Galbraith, why do you think that the functions should remain with SEPA? Will you comment briefly on the proposals that the aquaculture industry has made about its preferences for the planning system?
I would be delighted to, but I had better not, because I am from Scottish Natural Heritage. I had better pass over to Andy Rosie to answer that.
Sorry.
We have a long history of developing a regulatory approach with the industry. As it has grown up, we have grown up with it. We have developed approaches that are very much risk based; they are about licensing the activity where it has potential impacts on the marine environment. We have quite a mature regulatory process in place, which has allowed the industry to develop quite successfully to a point where, in relation to the length of its coastline, Scotland produces more farmed fish than any other country does—it is not behind the game in terms of spatial distribution.
The aquaculture planning in the town and country planning system is not nearly so mature, although local authorities have had long experience of planning for aquaculture, whether that is through the aquaculture framework plan forward planning or through the consultation processes that have been in place since about 1986 for Crown Estate leases. My local authority is of the view that the planning process should stay with local authorities. I would like more clarity on what the industry proposed this morning, so that I can think about it more carefully. Not all local authorities are convinced that they want to keep on the development planning aspect—they want to look more to enforcement. However, Highland Council is keen to keep that planning power.
I will raise an issue on behalf of the shellfish growers. At our meeting in Oban, Walter Speirs mentioned that the designation of shellfish-growing waters, which currently falls under the shellfish waters directive, will come under the river basin management plans as part of the water framework directive, but that no designation for shellfish-growing waters has yet been specified in the river basin management plans. How will specific designation for shellfish-growing waters be continued and maintained and under which legislation?
That is a question for Andy Rosie—I am not sure.
I will attempt to answer that. The shellfish waters directive has a mechanism for designation of waters where shellfish growing is important, and such designations have taken place for several years. The directive is to come to an end and will be subsumed into the water framework directive, but the requirement to carry on the designation process will carry into the water framework directive and a similar approach will be applied. Where water is important for shellfish growing, the designation will continue and the protection measures will be brought to bear.
I thank the witnesses for coming to give evidence. Any supplementary information should be sent to the clerks by Wednesday 17 June, so that it can inform our next evidence-taking session, which will be on 22 June in the Solway Firth area. That concludes the public part of the meeting. I thank all the interested members of the public for attending.
Meeting continued in private until 12:56.
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