Marine fish farming in Scotland: Proprietorial behaviour and the public interest

Journal of Rural Studies, Vol. 7, No, 3, pp. 253-263, 1991 0743-1)167/9 [ $3.00 + 0,00 Printed in Great Britain Pergamon Press plc

Marine Fish Farming in Scotland: Proprietorial Behaviour and the

Public Interest

M.G. Lloyd and L.H. Livingstone Department of Land Economy, University of Aberdeen, U.K.

A b s t r a c t - - Marine fish farming involves the commercial production of salmon, trout and shellfish. The high quality of the coastal marine environment of northern Scotland has resulted in a geographical concentration of the industry in the region. As a consequence, since the 1960s marine fish farming has created valuable employment and inward investment opportunities with significant social a n d

community spin-offs in a relatively remote a r e a . The rapid growth of the industry has, however, prompted a concern for the immediate and longer-term impacts on the environment. This conflict of interest has drawn attention to the effectiveness of the regulatory framework for marine fish farming. The principal body in this context is the Crown Estate (Scotland), which acts in a proprietorial manner with respect to the development of the industry. This paper examines the nature of the regulatory framework and discusses the extent to which the public interest is taken into account by the Crown Estate Commissioners.

1. I n t r o d u c t i o n

The advent of the government ' s liberal market economic philosophy has resulted in the real ignment of the public and private interests involved in policy formulation and implementation• As demonst ra ted by Bell and Cloke (1989), such changes, which involve the processes of centralisation, privatisation and deregulation will be of significance for rural areas. This is certainly likely to be the case with respect to any changes to the statutory land-use planning system, particularly in light of the uneven- ness of prevailing institutional arrangements in rural a r e a s (Selman, 1988; Selman and Barker , 1989). The government has set out a strategy of restructuring the conventional planning system so as to retain itself as a key 'player in the marke t ' (Harden, 1987), which has involved increased centralisation of resources and decision-making and the enhancement of the role of the private sector in policy formulation a n d implementat ion (Loughlin, 1986; Thornley, 1990). The restructuring of interests in the planning a r e n a has resulted in a ' f ragmenta t ion of planning' (Brindley et al . , 1989) with an emerging bias towards the private sector. This has been achieved by m e a n s

of primary legislation, secondary legislation a n d

administrative guidance (Rowan-Robinson and Lloyd, 1986), and has opened up the planning

system to the multifarious interests involved in the use a n d d e v e l o p m e n t of land (Healey et al . , 1988). These arguments suggest that decision-making, management and the resolution of conflict associated with land use and development will be increas- ingly conducted within a privatised institutional context.

This paper examines an established priwtte planning f ramework in rural policy-making and implementation: that of the Crown Estate Commissioners who a r e charged with the responsibility of securing the best interests of the Crown Estate. As a consequence the Commissioners exercise a proprietorial interest in terms of management and development of the Estate. This suggests that the private interests involved prevail over a wider social or communi ty interest. These circumstances would appear to con- form to the notion of 'private management planning' in which it is asserted that although such arrangements 'can act more quickly and in a more flexible manner than a typical local authority . . . The disadvantages are that public scrutiny of its decision- making and public affairs can be severely limited • . . an aura of confidentiality can surround all its activities' (Brindley et al . , 1989, p. 162). This paper outlines the approach adopted by the Crown Estate Commiss ioners with respect to marine fish farming

253

254 M.G. Lloyd and L.H. Livingstone

in Scotland and examines the ways in which the wider social interest is accommodated within a proprietorial decision-making framework.

2. Marine fish farming in Scotland

Marine fish farming involves the commercial production of certain species of fish such as salmon, trout and shellfish. It is carried out for the most part in sheltered sea lochs and tidal inlets. Such locations have to be accessible, free of predator species and have high standards of water quality. In general, these preconditions are satisfied in the north-western coastal areas of the Highlands and Islands of Scotland. Since the 1960s, marine fish farming has established itself as a major industrial activity in that region. It has created valuable employment opportunities, attracted inward investment and encour- aged the participation of local people. These benefits are clearly of wider social and community significance in this relatively remote region and have led to marine fish farming being described as a 'boom' industry (Coull, 1988).

An historical analysis of the development of marine fish farming in northern Scotland illustrates the principal feature of the industry: its rate of growth. Since the early 1960s, when an initial interest was expressed by the private sector in developing the industry in Scotland, some 600 leases have been granted by the Crown Estate Commissioners. Table 1 shows the breakdown of these leases between the two main activities, shellfish and salmon production. Approximately 43% of leases are for salmon production and 57% for shellfish production. There are now estimated to be 300 companies involved in marine fish farming in the Highlands and Islands (Highlands and Islands Development Board, 1989). A further illustration of the rate of growth of the industry is given by estimates of its output. This has increased from 520 tonnes in 1979 and 10,337 tonnes in 1986 to 17,951 tonnes in 1988. Provisional

Table 1. Crown Estate sea-bed leases March 1989

Total approved leases

Region Salmon Shellfish

Highland 89 161 Strathclyde 46 88 Dumfries and Galloway - - 1 Western Isles 80 86 Orkney 18 22 Shetland 44 7

Total 277 365

Source: Crown Estate Commissioners, 1989.

estimates suggest that production will exceed 50,000 tonnes in 1991 (Highland Regional Council, 1989). A recent survey of a sample of marine fish farms in northern Scotland showed that the majority of the enterprises (some 76%) are in fact locally owned and controlled. Survey evidence would suggest that those in overseas ownership tend to be the larger, multiplant operations (Livingstone and Lloyd, 1989). There is, furthermore, a marked geographical dimension to the industry. Early developments, which were primarily related to salmon production, tended to locate on the south-west mainland. This has subsequently extended to the north-west of the region and more recently to the Western Isles. The latter, geographical shift, relates to a contemporary upsurge of interest in shellfish production (Coull, 1988).

The potential of the industry's contribution to the socio-economic development of the region has long been recognised by the Highlands and Islands Development Board (HIDB). The Board was established in 1965 with two main objectives. Firstly, to assist the people of the region to improve their economic and social conditions and, secondly, to enable the region to play a more effective part in the economic and social development of the national economy. The HIDB has subsequently set out to address the inter-related problems of population loss, unemployment and poor job opportunities, low inward investment and depressed indigenous activity. It was granted a wide range of develop- mental powers, including the ability to provide financial assistance by way of grant, loan and equity. The HIDB has refined and effected an economic development strategy which has involved subsequently both attracting inward investment and encouraging traditional resource-based activities (Lloyd, 1988). Marine fish farming was, therefore, seen as an ideal local resource sector to encourage in the region and indeed, since the 1960s, the HIDB has played a pivotal role in encouraging the establishment and subsequent expansion of the industry. It is noted, in this context, that initially the HIDB 'provided financial assistance towards research and development and to pilot projects to the companies working on fish farming developments, which were considered to have good potential, and it was not until it could be shown that the techniques were in place to produce a profitable business that grants and loans assistance started to be given by the Board. Once the viability of the industry was proven, the emphasis of Board funding turned towards grants and loans assistance to help establish potentially profitable companies' (Coull, 1988, p. 5). In 1985, however, the HIDB initiated a redirection of the financial support away from the larger firms to smaller, newer locally based establishments. The

Marine Fish Farming in Scotland

al ' Table 2. Scottish employment in m i n e fish farming, 1988 (full-time

equivaR]nts)

Fish farming Feed Processing

Direct 1600 120 1800 Local company spending 366 27 411 Local personal spending 366 27 411

Total 2332 I74 2662

Source: Highlands and Islands Development Board, 1989.

255

benefits of the support by the HIDB and the positive planning framework of the strategic planning authorities in northern Scotland are reflected in the employment generated by the industry. Some recent estimates by the HIDB, for example, suggest that in excess of 5000 jobs were created by 1988 when all the various aspects of the industry are considered. These are shown in Table 2.

The rapid growth of the marine fish farming sector and its extending geographical coverage has, however, prompted considerable concern about its likely effects on the environment. In 1988, a report was published by the Scottish Wildlife and Countryside Link, an association of voluntary bodies concerned with wildlife and countryside conservation in Scot- land (Scottish Wildlife and Countryside Link, 1988). This report set out a detailed examination of the specific impacts of marine fish farming. These ranged from the scientific aspects of marine ecology to the impacts on the scenic quality of the rural landscape. In particular, the report drew attention to the pollution caused by marine fish farms and the effects on wild salmon populations and predator species, as well as the landscape, tourism and recreation issues involved. The report illustrated the increasing concern for the environment. In 1989, this concern intensified with the report published by the Nature Conservancy Council which drew attention to the likely cumulative effects of the industry on local environments (Nature Conservancy Council, 1989). A survey of community councils in northern Scotland in 1989 confirmed that there was wide- spread concern about the likely environmental costs and impact on landscape and the amenity of local areas (Livingstone and Lloyd, 1989). The environmental dimension provides the immediate context to this paper, as it prompts consideration of the extent to which the wider public interest is involved in the development of marine fish farming in Scotland.

3. Marine fish farming and the Crown Estate

The Crown Estate is a landed estate which comprises extensive agricultural holdings and substantial

blocks of property in London and other major urban centres. In addition, it comprises a substantial portion of the sea-bed and foreshore around the coast of the U.K. excluding that alienated by grant, as in the case of the Duchies of Lancaster and Cornwall, and where the ancient udal form of land tenure prevails, as in Orkney and Shetland (Howarth , 1988). The Crown Estate was created in 1760 as part of a settlement by George I[, by which he, and successive sovereigns, gave up title to the Crown's heriditary revenues from Crown land in return for financial support from the Civil List, In effect, therefore, the Crown Estate was established as a Trust in which the land and property resource is held in perpetuity for the Sovereign (Deans, 1986). The Crown Estate Act 1961 charged the Crown Estate Commissioners with the responsibility of managing the Crown Estate. In effect, the Com- missioners act as trustees in the best interests of the Estate with the general duty of 'maintaining the Crown Estate as an estate in land . . . , to maintain and enhance its value and the return obtained from it, but with due regard to the requirements of good management ' . It follows from this that the Crown Estate Commissioners exercise a proprietorial interest in the management and development of the Crown Estate. In this context, it has been suggested the powers granted to the Commissioners under the legislation 'were primarily concerned with equipping them to management urban and agricultural property holdings in a similar manner to landowners in the private sector. These powers are not designed to establish a comprehensive system of controls . . . analogous to those of planning authorities . . . The Commissioners were not established as a regulatory body nor do their procedures equip them for such a role. They act more in the nature of commercial landowners, entrusted with the management of the Crown Estate ' (Deans, 1986, p. 178).

The Crown Estate includes a significant proportion of the foreshore and sea-bed around the U.K. With respect to marine fish farming, the Crown Estate Commissioners hold the freehold interest in the foreshore and sea-bed. The foreshore is defined as the land between the mean high and low water


marks, except in Scotland where the spring tidal marks apply. The Crown Estate also claim rights over the sea-bed which extend to the limit of territorial waters. The Territorial Sea Act 1987 extended this from 3 to 12 miles. In order for marine fish farming to take place, a potential operator must obtain a lease from the Crown Estate Com- missioners. This would give a right to occupy the portion of the sea-bed in question and provide security of tenure to initiate and develop the enterprise. The Commissioners request information relating to the location and area of the proposed fish farm, the scale and type of installations to be involved, details of species to be cultivated, any longer-term production intentions, the duration of the lease requested and any onshore developments associated with the project. The non-assignable lease is granted-by the Commissioners for a term appropriate to the development and the financing involved. No sub-letting is permitted and a general condition employed is that the fish farm is established within two years of the granting of the lease.

In the early days of the industry's development in Scotland, the Crown Estate Commissioners attached nominal rents to the granting of its leases for fish farms. In 1987, however, the Commissioners introduced commercial rates, where the rent is linked to the level of production and the prevailing price of fish. The shift in the basis of the rents paid has led to a certain amount of controversy (Coull, 1988) and the contesting of the legitimacy of the Crown's right of title to the sea-bed under the udal tenurial arrangements in Orkney and Shetland (Howarth, 1988). Mansfield (1988) has argued, however, that the shift to commercial rents does not suggest the Commissioners are seeking to maximise its rental income from fish farming. Notwithstanding this argument, the Crown Estate Commissioners are clearly acting on the proprietorial or best interests of the Estate. Deans (1986) argues that, in this respect, the Commissioners may be likened to trustees of the Estate. This position is modified in practice, however, by the requirement of good management. It is suggested that the Commissioners adopt a broad interpretation of this statutory requirement, including a concern for the wider issues appropriate to trustees. This is apparent in the prefaces to the annual reports for 1987 and 1988, where Lord Mansfield argues that the Commissioners have to draw a careful balance between the opportunities for development, local people and conservation of the environment. It is this that provides the context to the consideration of the wider community and environmental issues associated with the development of marine fish farming in Scotland. The Crown Estate Commissioners take account of the public interest in the development of the industry in two

ways: the consultation procedures associated with the granting of sea-bed leases for marine fish farms and an indicative locational strategy setting out an overview for the development of the industry. These are considered in turn.

4. Consultation procedures

Firstly, the Crown Estate Commissioners have employed consultation procedures associated with the licencing of fish farms. These procedures have undergone a marked change in recent years. The Crown Estate Commissioners had always voluntarily consulted other interests with respect to the granting of leases for marine fish farms, although initially this was a relatively restricted form of consultation. Individuals and bodies were consulted with regard to individual lease applications where there was a noted interest in the site in question, existing leases in the vicinity and others as deemed relevant by the Crown Estate Commissioners (Cobham Resource Consultants, 1987). Following the recommendations of the Montgomery Committee of Inquiry (1985) into the functions and powers of the Islands Coun- cils, a number of procedural changes were introduced. The Montgomery Committee recommended that, at the very least, local authorities should be included in the Commissioners' consultation procedures. Following this, the Scottish Development Department drew up the basis of a wider consultation procedure. This was adopted by the Com- missioners in October 1986. The full list of consultees currently involved in this procedure is given in Table 3. The new procedure has attempted to involve all relevant interested parties, including existing fish farm leaseholders in the vicinity of the site in question. The Crown Estate Commissioners now publish a formal Public Notice in the appropriate local newspaper. This states that a copy of the application is available for inspection at the nearest Post Office to the proposed site and at the Com- missioner's Edinburgh office. In all cases, consultees and the public are given 28 days in which to submit representations to the Crown Estate.

The consultation procedures employed by the Crown Estate Commissioners have recently been enhanced. This follows a review of the consultative procedures of the Crown Estate carried out by the Scottish Office in 1988. In a parliamentary written answer, the Secretary of State for Scotland stated that, following detailed discussion with a wide range of statutory and other bodies, there 'was general agreement that the extensive consultation arrangements introduced by the Commissioners two years ago were working well, and enabled all those with an interest in a lease application to make their views

Marine Fish Farming in Scotland

Table 3. Crown Estate consultees for individual marine fish farm lease applications

Interest groups Consultees

Existing leaseholders 1. Recorded leaseholders 2. Other potential developers

Landowners/tenants

Fishermen

Navigation

Other departments/agencies

Local authorities

Conservation societies

General public

3. Recorded Landowners 4. Scottish Landowners" Federation 5. Scottish Crofters' Union 6. National Farmers' Union of Scotland

7. Salmon Fishery Owners 8. Department of Agriculture and Fisheries 9. Scottish Fishermen's Federation

10. Local Fishermen's Association

11. Department of Transport 12. HM Coastguards 13. Royal Yachting Association 14. Port/Harbour Authorities 15. Ministry of Defence

16. Highlands and Islands Development Board 17. Crofters' Commission 18. Forestry Commission 19. Countryside Commission for Scotland 20. Nature Conservancy Council

21. Regional Planning Authority 22. District Planning Authority 23. River Purification Boards

24. National Trust for Scotland 25. Scottish Wildlife Trust 26. Royal Society for Protection of Birds 27. Association for Protection of Rural Scotland

28. Respondents to newspaper advertisements 29. Respondents to post office notices 30. Special interest groups


257

known' . The Scottish Office recognised, however, that notwithstanding these arrangements , a limited number of contentious lease applications did occur from time to time. These put considerable stress on the existing consultative procedures. It was proposed, therefore, to establish an advisory commit tee to be made up, as appropr ia te , of representatives from the Nature Conservancy Council, the Country- side Commission for Scotland, Depar tmen t of Agri- culture and Fisheries for Scotland, the River Purification Boards and the relevant regional and district councils. It is intended that the advisory commit tee meet as frequently as is necessary to consider cases referred to it. It will meet to consider those cases where the Crown Estate Commissioners are unable to resolve any conflicts of interest through the established procedures. It is open for the chairman of the commit tee to advise the Com- missioners to refer any case that raises particular problems or issues to the Secretary of State for

Scotland. The Crown Estate Commissioners have under taken to take account of his advice in reaching a final decision. Applications for leases for farms of less than 3000 m 2 or for shellfish operat ions will not be considered unless they raise sensitive', issues.

5. Strategic planning frameworks

Secondly, in December 1987, the Crown Estate Commissioners published a strategic planning f ramework for marine fish farming in Scotland. This took the form of strategic guidelines concerned with the siting and design of fish farms and was intended to 'provide a basis for actions by developers, reactions by other interest groups, and decisions by the Crown Estate and other statutory authorities. They should not be seen as a rigid Master Plan but rather as a flexible f ramework which will have to be continuously reviewed and periodically revised and


improved' (Crown Estate Commissioners, 1987, p. 1). The guidelines are essentially intended to serve a practical purpose: to aid potential fish farm oper- ators devise an application and proposal which involves the minimum conflict. They take account of the locational requirements of existing fish farms and encourage potential farms to investigate the technical feasibility and comparative costs of operat- ing where the constraints may be less than in the popular, but congested, areas. Thus the guidelines recommend the dispersal of activitiy even where there may be some initial disadvantages. They then set out criteria for siting and notional separation standards against which a detailed assessment of individual proposals can be measured. The guidance sets out a strategic locational strategy. Two categories of area were designated: 'sensitive' and 'very sensitive'. 'Sensitive areas' are defined as areas which include a high proportion of established fish farms. These included the sheltered sealochs of Argyll and the West Highlands. The guidelines point out that although unleased areas can still be found,

many of the potential sites are constrained by the presence of other interests, such as hotels, tourist centres, houses, wildlife populations, anchorages and fishing grounds. The category of 'very sensitive area' was introduced to indicate sealochs and bays characterised by outstanding landscape and conservation value, the presence of multiple interests and limited space for the expansion of marine fish farming. The guidelines argued that a combination of such factors may make any further farming activity controversial and possibly unacceptable or, at least, subject to severe constraints.

In 1989, the Crown Estate Commissioners published a revised indicative locational strategy, as shown in Fig. 1. This was based on experience of development trends, a sensitivity analysis of development potential and expectations as to likely future locational preferences of marine fish farmers. The locational strategy provided for three categories of area for marine fish farm developments. These are, firstly, 'very sensitive areas' which are generally located in

Sutherland

OVERY SENSITIVE ARE/

Ross and Cromarty

HIGHLAND '

~;~ O Q e Lochaber

~ miles \ / ~ 0 10 20 30 40 50

k.....) / () 10 2'03'04'0 5'06~0'7b 810 {/ kilometres

Figure 1. Fish farming area guidelines for N.W. mainland. Source: The Crown Estate, 1989.

Marine Fish Farming in Scotland 259

Table 4. Very sensitive areas for marine fish farming

t. Loch Laxford/Loch a' Chadh-Fi Sutherland 2. Loch Glendhu/Loch Glencoul Sutherland 3. Loch Broom/Loch Kanaird Ross-shire 4. Inner Little Loch Broom Ross-shire 5. Inner Loch Ewe/Loch Thurnaig Ross-shire 6. Inner Loch Gairloch Ross-shire 7. Inner Loch Torridon/Loch Shieldaig Skye 8. Loch Carron Skye 9. Loch na Cairidh/Caolas Scalpay Skye

10. Loch Brittle/Loch Scavaig Skye 11. Loch na Dal Skye 12. Loch Alsh/Loch Duich Lochaber 13. Inner Loch Hourn Lochaber 14. Inner Loch Nevis Lochaber 15. Loch nan Uamh Lochaber 16. Inner Loch Sunart Lochaber 17. Inner/Outer Loch Leven Lochaber 18. Tobermory Bay, Mull Argyll 19. East Lismore Argyll 20. Inner Loch Creran Argyll 21. Inner Loch Etive Argyll 22. Sound of Kerrera/Loch Feochan Argyll 23. Loch MelfortlShuna Sound Argyll 24. Loch Craignish Argyll 25. Loch Sween Argyll


the inner sealochs. The Commissioners consider these to be severely constrained in terms of development potential and there is a general presumption against the establishment of additional farms. The zones designated as very sensitive areas are shown in Table 4. The Commissioners also identify a category of other lochs, where there is a general presumption in favour of small and medium-sized fish farms if compatible with other interests. Finally, there is a category of open coasts where there is a presumption in favour of development again only if compatible with other interests.

6. Environmental impacts

Finally, there is, in addition, another mechanism which provides an opportunity for a wider community perspective on the environment to be adopted by the Crown Estate. This is the relatively recent requirement by the European Community (EC) to take account of the environmental impact of fish farms. The EC Directive No. 85/337 introduces the requirement for the assessment of the effects of certain private and public projects on the environment. The starting point of the Directive is that the best environmental policy consists of the prevention of pollution at source, rather than subsequently trying to counteract its effect. It affirms the need identified by the EC to take the effects on the environment into account at the earliest possible stage in all the technical planning and decision-

making processes. The Environmental Assessment (Salmon Farming in Marine Waters) Regulations 1988 implements the requirements, but only with respect to salmon farming and not to the rapidly developing shellfish farming industry or the pro- jected development of halibut farming. The duty to decide whether or not an environmental statement is required and the powers to judge the implications of such a statement lie with the Crown Estate Com- missioners. The regulations apply where an application for consent for salmon farming in marine waters is received by the Crown Estate Com- missioners. The Commissioners shall not grant consent for salmon farming in marine waters where the proposed development will be likely to have significant effects on the environment by virtue of its nature, size or location. The request for environmental information comes after receipt of an application. The Commissioners have then to inform, as appropriate, the planning authority whose juris- dication adjoins the marine waters where the development is proposed, the Secretary of State, the Countryside Commission for Scotland, the Nature Conservancy Council and the River Purification Board requesting them to make available any information relevant to the application.

7. Marine fish farming and associated statutory responsibilities

Notwithstanding the primary role exercised by the Crown Estate Commissioners, it is important to note that there are a number of public sector bodies with a statutory responsibility for aspects of marine fish farming development in Scotland. These are, however, relatively peripheral to the licencing procedures exercised out by the Crown Estate Com- missioners who, as a result, effectively dictate the pace, nature and geographical location of the industry. The public agencies may be considered, none the less, as representing a certain degree of the public interest in the industry, Their contribution and responsibilities are briefly outlined here.

Firstly, the River Purification Boards are responsible for the control of pollution and the quality of all inland and tidal waterways under the Rivers (Prevention of Pollution) (Scotland) Acts 1951 and 1965 and The Control of Pollution Act 1974. In Scotland, due to the location of most fish farms, the Highland River Purification Board and Clyde River Purification Board assume specific responsibility for this control. In the case of the Western Isles, Orkney and Shetland, the function of the Boards is carried out by the respective Environ- mental Health Departments. The Western Isles Council use the Clyde River Purification Board on a


consultative basis, and Orkney and Shetland tend to be closely associated with Highland River Purifi- cation Board (Institute of Aquaculture, 1988). In general terms, discharge from fish farms is deemed to be 'trade effluent' which requires a discharge consent from the relevant Board (Highland River Purification Board, 1987).

Secondly, the Department of Transport is responsible for navigational consents under the Coast Protection Act 1949. An application for such a consent is normally conducted through the Crown Estate Commissioners. The main consideration of the consent is the navigational safety in tidal waters in the area of proposed fish farms. Consideration has to be taken of other interests including yachting, commercial fishing, shipping, defence and coastguards. Thirdly, the Department of Agriculture and Fisheries for Scotland (DAFS) is responsible for disease control in relation to marine fish farming. Under the Diseases of Fish Acts of 1937 and 1983, DAFS has powers to restrict and control the import of certain species and control the movement of fish with certain notifiable diseases. Under the 1983 legislation and the Registration of Fish Farming and Shellfish Farming Businesses Order 1985 all fish farms are required to register and provide information on site, location, stocks, rearing and holding facilities to the DAFS.

Finally, local planning authorities have a relatively restricted role to play in terms of the statutory land- use planning legislation. Their jurisdiction is effectively confined to any onshore development associated with marine fish farming activities. There is, however, some inconsistency as it is not entirely clear what the precise statutory position is. In this context it has been suggested that there is 'no authoritative statement in the legislation as to whether fish farming constitutes agriculture, and, therefore, it is open to planning authorities to interpret whether or not it requires planning permission' (Cobham Resource Consultants, 1987). The Town and Country Planning (Scotland) Act 1972 excludes from the definition of development the use of land for agricultural purposes or buildings associated with agriculture. It is unclear, therefore, whether, marine fish farming falls within this particular definition of agriculture. Furthermore, Section V of the Town and Country Planning (General Development) Order 1981 permits ex- tensions of established fish farms to proceed outwith of planning permission; however, there is some uncertainty over any buildings connected with new marine fish farm establishments. In 1977, the Scot- tish Development Department issued a paper intended to clarify this confused position. This stated that 'the Secretary of State takes the view that fish

farming, whose planning implications are somewhat different from those of farming the land, should be subject to normal planning control' (Cobham Re- source Consultants, 1987). In practice, the majority of planning authorities involved have followed this particular interpretation. These include the High- land Regional Council and the Western Isles Council as the general planning authorities responsible for development control matters. In contrast, Argyll and Bute District Council (in Strathclyde Region) regards onshore developments associated with marine fish farming as legitimate agricultural operations.

8. Marine fish farming and the public interest

The Crown Estate Commissioners are charged with the responsibility to observe the principles of good management with respect to the Crown Estate. It is this requirement that essentially conditions the proprietorial behaviour of the Commissioners in securing the development of marine fish farming in Scotland. Deans (1986) has pointed out, however, that good management could mean the maximis- ation of financial gain, the beneficient treatment of the tenants or the beneficient treatment of the wider community. The Crown Estate Commissioners would argue that they take account of the latter consideration in their interpretation of good management. The evidence relating to the considerations attached to the granting of sea-bed leases would support this view (Deans, 1986), and it would also appear the Commissioners are aware of the wide socio-economic considerations involved in the development of the industry (Livingstone and Lloyd, 1989).

The Crown Estate Commissioners would argue that the wider interpretation of good management is reflected in the statistical evidence relating to the decisions made with respect to applications for sea- bed leases. Table 5 sets out the numbers of applications and decisions made by the Crown Estate for the period 1986-1989.

The evidence presented here would suggest that of the total applications for sea-bed leases for both salmon and shellfish operations, approximately 50% are granted approval by the Commissioners. As Table 6 demonstrates there is some variation between salmon and shellfish decisions. Of the sea-bed leases granted, some 5% are granted with no conditions attached to the lease, whereas the re- mainder are conditional (Stirrat, 1989). Some 20% of all applications are rejected by the Commissioners and a similar percentage are withdrawn by appli- cants. This latter point is important because it


Table 5. Crown Estate (Scotland): fish farming applications and decisions 1 October 1986-31 March 1989 (SA = salmon, SH = shellfish)

Total Approvals Rejections Withdrawals Under consideration

Areas All SA SH SA SH SA SH SA SH SA SH

Lochaber 77 32 43 12 24 11 5 9 14 0 2 Skye 75 22 53 12 32 5 9 5 7 0 5 Ross-shire 92 35 57 12 31 5 12 17 11 1 3 Sutherland 62 29 33 9 18 11 6 9 3 0 6

Total Highland 3(16 118 188 45 105 32 32 40 35 1 16

Argyll 156 57 99 23 58 15 14 9 14 10 13 Western Isles 91 58 33 34 20 15 7 5 1 4 5 Orkney 38 20 18 11 11 3 3 3 3 3 1 Shetland (n.a.)

All areas 591 253 338 113 194 65 56 57 53 18 35


Table 6. Marine fish farming: decisions

Salmon Shellfish Total

Number % Number % Number %

Approvals 113 Rejections 65 Withdrawals 57 Under consideration 18

Total 253

44.6 194 57.3 307 51.9 25.6 56 16.5 121 20.4 22.5 53 15.6 1 I() t8.6

7.1 35 10.3 53 8.9

100.0 338 100.0 591 t00.0

Source: Adapted from Crown Estate Commissioners (1989).

suggests that a certain amount of effective self- regulation takes place within the industry. Appli- cants for sea-bed leases may withdraw in response to changing market and financial conditions, on-going decisions made by the Commissioners regarding other applications, or because the applicant has multiple applications. It suggests, however, that the erosion of applications is not entirely due to the decisions made by the Commissioners.

Notwithstanding the innovations and the evidence cited by the Crown Estate Commissioners, there remains considerable disquiet over the institutional ar rangements for controlling the development of marine fish farming in Scotland. In particular, notwithstanding the changes introduced in 1987, the consultation procedures have continued to attract criticism. Strathclyde Regional Council (1987) for example , have been critical of the initial procedures put in place by the Commissioners on the grounds that the regional councils were excluded from direct participation. As a consequence, their interests were represented by the district councils involved, which placed an unfair burden of responsibility on the

latter in representing the regional interest. This criticism has subsequently been met in part by an informal agreement which now permits the regional councils, in liaison with the districts, to make representat ions on individual sea-bed lease applications. Notwithstanding this concession, however, Strathclyde Regional Council remain sceptical about the consultation procedures. It has argued that the "available evidence suggests that the new procedures are still not satisfactory. The ultimate decision still rests with the Crown Estate Commissioners who are not best equipped to act as a planning authority arbitrating on amenity or environmental grounds. There is no requirement for discussion of issues prior to a decision being taken. There is, therefore, no opportuni ty to allow conflicting evidence to be tested' (Strathclyde Regional Council, 1987, p. 3). In similar vein, the Scottish Wildlife and Country- side Link (1988) have acknowledged that the consultative procedures are a step in the right direction, being an improvement on the previous lack of consultation. However , they argue that they fall well short of establishing a fair and sensible system. The organisation identifies three main shortcomings to


the consultation arrangements. The first concerns the limited participation by interested parties which, it is argued, is reflected in the paucity of response from those consulted, the inadequate information provided, the poor data, the limited publicity and the weak imposition of conditions. Secondly, attention is drawn to the lack of democratic control whereby the Commissioners act as sole arbiter over the development of fish farms. Furthermore, there is no appeal mechanism or opportunity for wider public scrutiny. Finally, it is suggested the consultation process takes place within a public policy vacuum, particularly with respect to the forward planning of the industry. The nature of these criticisms suggest that the revised consultation procedures are still not adequate enough to accommo- date the diverse range of interests involved in the development of marine fish farming in Scotland.

The strategic guidelines for siting and design of marine fish farms have also attracted critical attention. The Convention of Scottish Local Authorities (1988), for example, have argued that the guidelines are 'quite inadequate in the wider national planning context in establishing a forward strategy for the industry'. In addition, the Scottish Wildlife and Countryside Link (1988) suggest that the guidelines only reflect the proprietorial interests of the Com- missioners in seeking to promote further incursions into the remaining sanctuaries of the Western Highlands and Islands of Scotland. These criticisms would suggest that the strategic guidance does not provide a sufficiently holistic perspective of the development of the industry.

act as a de facto planning authority. This has two broad effects: it transfers what passes as a planning decision from the local authority to a non-elected body (and one which has a proprietorial interest in the development of the industry) and it pre-empts any subsequent decision by the local authority with respect to any associated onshore development for which the authorities are responsible. As the Con- vention of Scottish Local Authorities (1988) has argued, the Crown Estate Commissioners cannot arbitrate on sound or objective planning principle when deciding on individual sea-bed applications. Their proprietorial or commercial interest, even when conditioned by the need to ensure good management of the Crown Estate, effectively involves a biased view of the relevant planning considerations (which would embrace a wider societal perspective as to the distribution of costs and benefits involved).

Thirdly, it has been suggested, the extension of planning controls over marine fish farming would secure not only greater accountability in the decision-making process but facilitate the integration of the industry into the overall strategic planning framework. The Convention for Scottish Local Authorities, for example, has stated that extension of planning controls 'would enable local authorities to assess and approve individual proposals, but in a wider context it would also bring fish farming more effectively into consideration within the hierarchy of policies and forward plans, from local and structure plans through to national planning guidance' (1988, p. 56).

These criticisms have led to calls for an alternative approach to the regulation and management of marine fish farming. This alternative approach has involved arguments for the extension of conventional land-use planning controls over the sea-bed and associated activities. The case for an enhanced planning framework rests on three main grounds.

Firstly, attention has been drawn to the fact that the lack of a comprehensive regulatory framework is simply 'the illogical product of historical factors' (Scottish Wildlife and Countryside Link, 1988, p. 55) and is therefore clearly out of step with the present day need to control such activities. This suggests that marine fish farming, as a relatively recent industrial activity, has somehow slipped through the net of regulatory controls, although it involves many of the costs and benefits associated with the evaluation of more conventional planning and development projects.

Secondly, there is the problem that, as a consequence, the Crown Estate Commissioners have to

This debate illustrates the conflict or tensions in the public-private regulations over resource development and management. In the broader arena of rural resource planning, the debate presently concerns the increasing privatisation of public controls and plans (Bell and Cloke, 1989) with a concern for the likely effects of such change. The case study of marine fish farming demonstrates the effects of an established privatised rural development and management framework and highlights the issues associated with such a regulatory regime. These include the lack of democratic openness and control illustrated by the alienation of local authorities from the mainstream decision-making process and the poverty of a strategic dimension to resource management, as evidenced by the failure to integrate the development of policies for marine fish farming with other rural development policies.

9. Conclusions

The evidence presented in this paper suggests that


although the Crown Estate Commissioners exercise their proprietorial interests in the development of marine fish farming, a number of mechanisms do exist for the wider social interest to be represented. The consultation procedures enable a wider community of interests to make representat ions regarding individual applications for sea-bed leases to be granted by the Crown Estate Commissioners. The indicative [ocational strategy provides the framework within which decisions as to the granting of leases are made. This provides the basis for environmental and Iocational considerations to be included in the overall decision-making process. It is clear, however, that notwithstanding the exis~,ence of these mechanisms, there remains some dissatis- faction with the extent to which the public interest is conducted and reflected in the granting of leases by the Crown Estate Commissioners. This dissatis- faction rests, not so much on the weaknesses of the consultation procedures or the indicative locational strategies, but on the fundamental role played by the Crown Estate. It is seen as acting as a de fitcto planning authority whilst having a proprietorial interest in the development of the rural resource base. This contradiction strikes at the heart of the problem and illustrates the basic /'law in any privatised planning sysstem. It is a flaw that is likely to become more common as rural planning is increas- ingly conducted within a privatised institutional context.

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Documents

Marine fish farming in Scotland: Proprietorial behaviour and the public interest