Environment and Rural Development Committee, 19 Dec 2006

Meeting date: Tuesday, December 19, 2006

Official Report 160KB pdf

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Petitions

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Lamlash Bay (No-take Zone and<br />Marine Protected Area) (PE799)

Agenda item 2 is petition PE799, by the Community of Arran Seabed Trust, which proposes a trial closure of an area of Lamlash bay to all forms of marine life extraction—a no-take zone—and the closure of the rest of the bay to mobile fishing gear, which would be a marine protected area.

Colleagues will recall that we had a discussion on the petition a couple of months ago. After we considered the evidence, we requested that the Executive use the remainder of 2006 to establish urgent negotiations with the interested parties to find out whether a proposal could be developed with a view to implementing a scheme in 2007. We achieved an initial agreement between the fishing community and the petitioners—an interesting development that took place in the margins of the meeting—which meant that when I wrote to the Minister for Environment and Rural Development, I was able to suggest one or two additional proposals that related to the scale of the developments. We have had positive responses from fisheries officials in the Executive and from Scottish Natural Heritage and we have now received a reply from the minister. Further discussions have taken place and COAST, SNH and the Clyde Fishermen's Association are continuing to work on a proposal.

I welcome the minister's comment that any proposal is likely to merit having a statutory underpinning, given that one of our concerns was that a voluntary approach would not be sufficient. Further discussions, which will include Fisheries Research Services, are to take place in January. We do not have a timetable for the work thereafter. I have circulated an update letter from COAST, which states that a planning application for a major fish farm development in the area has recently been made. Members have seen the recommendation in the paper from the clerk. We are not quite at the end of our deliberations on the petition. I would like to return to the issue and to receive feedback on the January meeting. It is not our job to deal with planning matters, but I want the committee to watch what happens with the planning application as it progresses. We should note the progress that has been made and keep the petition on our agenda.

This is probably a dumb question, but I am only at the committee now and again. If the Crown Estate objects to the application, where do we sit? Are we or Westminster overruled by the Crown Estate?

The application will go through the planning process and the issue is entirely for the Scottish Government. The application may go to the Scottish Executive inquiry reporters unit and it might or might not be a complicated application—we do not know. This committee has no relationship with individual planning decisions, nor does the Communities Committee, but we have oversight of such issues—I put it no more strongly than that. There is a suggestion from COAST that may scupper the application. We cannot close our consideration of the petition, but there is nothing, apart from watching, that the committee can appropriately do in relation to the planning issues.

If we feel strongly about the matter, we could express an opinion to the planning authority for it to consider as part of its deliberations on the planning application, but we would need to feel very strongly before we did that.

The clerk tells me that COAST and the Clyde Fishermen's Association have objected formally to the application and have discussed the matter with SNH and the Scottish Executive Environment and Rural Affairs Department, so concerns are on the agenda. I am reluctant for the committee to take a view on a planning issue because that would open up that possibility to everybody who might think that planning issues are relevant to the committee.

Yes—that would probably not be appropriate.

We are at a point at which powers of the Crown Estate will be transferred to the planning authorities. Using the powers under the Freedom of Information (Scotland) Act 2002, we have found out that more than half the fish farm sites that the big companies own have not been used in the past four years. We are talking about a speculative application, which is not yet at the stage when local authorities, Parliament and Government get involved.

Given the amount of discussion that there has been of COAST's proposal and the collaboration between environmentalists and fishers in the community project, which will set an example, I feel strongly that the planning application for the fish farm—which has come out of the blue—looks like a spoiler. We have shown our disapproval on the record, which can be transmitted to other places. As the convener said, we should keep the petition open and see how things develop.

I agree with what other members have said. The COAST people, whom we met on our visit, feel that the proposed management arrangement could be an exemplar because the site is well used and there is an existing small fish farm and a mussel farm, so the bay is not pristine. The two farms were felt to be in proportion, appropriate to the area and liveable with. The proposed fish farm seems to be completely inappropriate to Lamlash bay, given its scale. I sincerely hope that it can be stopped by due process.

I suggest that we agree not to close the petition, that we to write to the minister to welcome the progress thus far and that we pass on the concerns that have been expressed to us about the proposed development that could knock the COAST proposal off course. As other members have said, we are in a public meeting, so our comments are all on the record.

The main thing is that the COAST proposal should go ahead—we should not be diverted by the fish farm proposal. We should say that we are delighted about the progress that has been made and that the proposal looks like progressing further.

Such would be the tone of my letter. In my previous letter, I referred to our debate and our discussions with the fishing community and COAST about options on how to proceed. We will want to keep a close eye on developments.

If there were to be a statutory arrangement, what form would it take? Would the minister consider making a several order or a regulating order?

It would be for the minister to explore the best way to proceed. Previously, we heard that fishing legislation exists that would allow him to act on the proposal. The fact that we now have it on the record that the minister agrees with us that there should be some form of statutory underpinning of the proposal is a big step forward.

I asked the question because a consultation about regulating orders is due to close at the end of the year. That is of interest, given the kind of secondary legislation with which we have to deal. The Rural Affairs Committee—one of our predecessor committees—dealt with the regulating orders that were introduced in Shetland in 1999. It would be useful for us to have some inkling of what kind of orders would be needed.

We could certainly ask. I imagine that the minister has considered the existing legislation, as we did before we heard from COAST. There is the opportunity to use the existing legislation. We will return to the petition at a future meeting.

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Ship-to-ship Oil Transfers (Conservation) (PE956)<br />Forth Estuary Ship-to-ship Oil Transfers (PE982)

Our next item is consideration of petitions PE956 and PE982, which are both on ship-to-ship oil transfer and which the Public Petitions Committee has recently referred to us.

PE956 by Mary Douglas calls on Parliament to urge the Scottish Executive to ensure that the Conservation (Natural Habitats, &c) Regulations 1994, as amended, are applied in relation to ship-to-ship oil transfers in Scotland. PE982 by B Linden Jarvis calls on Parliament to consider and debate the implications of proposed transfers of oil, ship to ship at anchor, in the Forth estuary, specifically focusing such consideration and debate on the likely impact of such operations on wildlife, tourism, local authority funding of clean-up and on how Parliament may use its powers within the 12-mile tidal limits to protect the local ecology, scenery, environment, areas of special scientific interest and habitats within the estuary.

Colleagues have copies of the petitions, the correspondence that has been considered by the Public Petitions Committee, a briefing paper from the Scottish Parliament information centre on ship-to-ship oil transfer in the Firth of Forth and a paper from the clerk about how we could deal with the petitions. We are joined by Bruce Crawford MSP.

Our consideration of the petitions is timely, given that our marine environment inquiry is coming up. The petitions raise issues relating to our marine environment and the various legislation and directives that make conflicting demands on it. It would be helpful to focus on the petitions as a test case in relation to how we regard the marine environment and how we maximise our use of it while protecting it. I am aware that our time for the inquiry is limited, but it would be nice if we could fit in a bit of scrutiny of the issues that the petitions raise.

I read the material on the petitions last night on the train. It is clear from the submission from Fife Council that quite a lot of questions are either not answered or have been only partially answered, and that various legislation and directives, which might or might not be complied with, are involved. There is a lot to consider and it might be useful for us to rootle around in it all.

I agree that there are many issues to do with process, as well as the big policy question of whether ship-to-ship oil transfer is a good idea.

I do not know whether this is a process issue—I apologise if the committee has considered it already. Has any attention been paid to the state of the ships that will carry out ship-to-ship oil transfer? Do not ask me where I picked this up, but in America the ships that are involved in oil transfers are double hulled. When I was on holiday in Ullapool and watched—excuse me if the term is racist—Russian klondykers, I thought that there was no way I would cross the Clyde in them, never mind use them to transfer oil. Is there statutory guidance that says that the ships must be sailable and able to do the job? That strikes me as being fundamental. There is no point in processing and agreeing ship-to-ship oil transfer if the ships are in such a state that they are going to spill oil anyway. It is interesting that the papers say that there has not been any spillage, but they were referring to areas that were protected, given where the ships were.

This is the first time the committee has dealt with the issue. We had a debate on the matter in Parliament earlier in the year—I think it was in March—in which one or two members of the committee took part. I certainly sat in on it. It is fair to say that the papers raise a number of questions, such as who would be responsible for cleaning up on shore. That is a local authority responsibility, so authorities must make contingency plans, even though there is no funding for that. There are questions about the role of Forth Ports, which is the responsible body under the habitats directive but which is a private organisation. There are lots of process issues to do with who is in charge and who is responsible.

The fundamental question—which was asked in the debate—is what the role of the Scottish Executive is. Parts of the legislation to do with maritime issues are reserved and parts of the legislation to do with environmental management are devolved—I am thinking in particular of the habitats directive. Members will have noticed the interesting comment from SNH about the species it thinks are most likely to be put at risk, such as cetaceans—dolphins and whales—which are protected. Other submissions refer to the significant colony of seals that we have in the Firth of Forth and the potential impacts as far as Berwickshire. There are a lot of big issues that we have never dealt with.

We should deal with the issue as part of our upcoming marine inquiry although, in order to ensure that we do not subsume it within that inquiry, we should have a special meeting during that inquiry in which we would deal only with this issue and speak to relevant witnesses. That would ensure that the matter was dealt with as part of the marine inquiry and that we did not simply generalise all the questions. We do not want either to have the marine inquiry dominated by the matter or to lose the issue in that inquiry. If we were to deal with it as I suggest, we would give the matter appropriate scrutiny as soon as possible and we would be able to generalise issues and feed them back into our marine inquiry.

Bruce Crawford has a strong interest in the subject.

I thank the committee for allowing me to take part in the discussion. I agree with the convener. The issue that the petition deals with is so complex that the outcomes of an inquiry into it might derail the marine inquiry, so you are quite right to try to contain the issue.

On the issue that Trish Godman raised about the types of ships that would be used, a lengthy and complex environmental assessment was made of the proposals that were submitted to the Maritime and Coastguard Agency. It detailed the types of ships that would be used and where they would come from. There are concerns about the adequacy of the assessment in that regard. However, it accepted that there will be oil spills in the Forth every 10 to 20 years as a result of ship-to-ship transfers and it recognised the numerous hazards that exist in the estuary, such as craggy rocks, mist and the danger that the mother ship and the transfer ship might come together. It was quite detailed work although, to some people's minds, it was not as thorough as it could have been.

As the convener suggested, it is a remarkably complex subject. Obviously, some of the legislative background goes back to when Forth Ports was privatised, when no one envisaged that that private company would in effect end up acting as a public authority in approving activity such as we are discussing. That is not to criticise Forth Ports, which finds itself in this position, but I have no doubt that there is a considerable conflict of interests for the company in what it is being asked to do.

The Forth has many special conservation areas and the activity that we are discussing could impact on the wildlife in the estuary. As the committee will have seen from correspondence from Fife Council, there is great concern about impacts on tourism and the economy. People see that the potential benefits of the activity are outweighed by the dangers.

I have been heartened by the all-party opposition to the proposals. That opposition is not a knee-jerk reaction, but has resulted from people's belief in the need to examine the issues. The all-party process might not have been collaborative, but it has certainly been complementary; for example, the Labour Party in Fife took a petition to the European Parliament and I visited the European Parliament with our MEP, Alyn Smith and raised a complaint with the Commission. A lot of work has been going on behind the scenes.

The sheer complexity of the situation has led to people being unsure about who is responsible for what. The most glaring issue in that regard relates to whether Forth Ports or the Scottish Executive has responsibility for implementation of the EU habitat directive. Forth Ports, the Scottish Executive and Scottish Natural Heritage all think that Forth Ports has that responsibility, with a signing-off process that involves the Scottish Executive. However, it is clear that Westminster thinks that the Scottish Executive has responsibility. In answer to a question from Mike Weir—one of my colleagues at Westminster—Dr Ladyman, the Minister of State for Transport at Westminster, stated:

"Furthermore, under regulation 44 of the Habitats Regulations, there is provision to license activities that could disturb a European protected species, or damage or destroy breeding sites or resting places. As this is for a devolved purpose, it is the responsibility of the Scottish Executive to determine whether a licence would be required for ship-to-ship transfers in the Firth of Forth."—[Official Report, House of Commons, 25 July 2006; Vol 449, c 1308W.]

Not only do we have complexity, we have uncertainty. That makes the suggestion that was made by the convener about how to handle the matter in the context of the marine inquiry all the more pertinent. The committee would do everyone a favour if it were to take that suggestion on board.

In the context of our discussion with the Finnish Parliament's Environment Committee clerk, if sustainable development is to be a strategic policy of the Government that people buy into, issues such as the one that we are discussing must fit in with that policy. The issue has implications for areas other than the Forth: there have been ship-to-ship transfers around the Orkneys for some time—they are conducted in an enclosed area there—and there is talk about using the Orkneys as an entrepot in which large ships from the big seas could transfer oil to small ships that would be used on the narrow seas, which is a proposal that could create economic benefit. The issue is important to the country, but has to be weighed up with regard to the dangers that are involved. Some of the reserved issues about the quality of shipping—which are dealt with by the International Maritime Organisation—are pertinent, particularly when we think of oil spills around the coasts of the west of Europe in Brittany, England, Scotland, Orkney, Shetland and so on and the move towards double-hulled vessels.

Any approach must include discussion with witnesses, during which we can deal with many of the issues that I have raised. The Environment and Rural Development Committee has a view with regard to sustainable development. That should be at the heart of any decision that is made.

I have just had a brief discussion with Mark Brough, the clerk. The best that we could do would be to have a special meeting in February as part of our marine inquiry, at which we would talk to the two petitioners and others who are involved in the matter. If we have one meeting in which we properly burrow into the issue, we will deal with the petitions appropriately and be able to feed the information that we gather into our marine inquiry. We will get the clerks to write to the petitioners to make them aware of our plans. Do members agree?

Members indicated agreement.

That has given the clerks yet more work to do with witnesses. However, I have every confidence that they will be able to work up a good meeting for us.