Charity’s legal challenge against council’s decision to approve fish farm refused

Friends of Loch Etive sought judicial review of a decision of the Argyll and Bute Council granting planning permission to Dawnfresh Farming Ltd for the development of a 10-cage rainbow trout farm on Loch Etive in Argyll, but a judge in the Court of Session refused the petition.

Lord Burns heard that due to the quality of its waters there have been a number of fish farms on Loch Etive, because it is “ideally suited” to the farming of rainbow trout and shellfish.

Dawnfresh has operated five farms on the loch, including “Etive 1” and “Etive 5”, under management agreements with the leaseholders, who have been granted leases by the Crown Estate, which owns the rights to the sea bed.

Until amendment to the Town and Country Planning (Scotland) Act 1997 in 2007, the operation and establishment of fish farms did not require planning permission, but that changed by virtue of certain amendments to the 1997 Act.

Existing fish farms, including Etive 1 and 5, were given planning permission by the Scottish Government by virtue of a permitted development order of 2011.

In 2012 Dawnfresh submitted a planning application for the establishment of a new fish farm at a site called “Etive 6”, but following significant opposition to the proposals a revised application was submitted which proposed smaller and fewer cages.

In January 2014 a public meeting of the planning, protective services and licensing committee of Argyll and Bute Council took place in Oban in order to determine the application and the recommendation of the planning officer, which was accepted unanimously by the committee, was to grant the application subject to concluding an agreement under section 75 of the 1997 Act.

The agreement was to provide for the “permanent removal of the applicants’ existing fish farm equipment from Etive 1 upon the first stocking of the site at Etive 6” and “the removal of the existing fish farm equipment from the site at Etive 5 on or before 31 December 2017 following the expiry of the applicants’ existing site leasing obligations”.

This was in order to achieve the necessary degree of consolidation and rationalisation of farming activity on the loch to ensure, in the view of the committee, compliance with the development plan and other material considerations.

On 21 March 2014, a section 75 agreement having been entered into, the council granted permission.

Friends of Loch Etive then raised a petition against the council seeking declarator that the decisions to grant the permission and to enter into the section 75 agreement were “unlawful and/or ultra vires and/or unreasonable”. The petitioner sought reduction of those decisions.

It was argued that the recommendation in the report to committee, in the event of approval for a new fish farm at Etive 6, required the permanent removal of the existing fish farms at Etive 1 and 5 operated by Dawnfresh.

Permission was granted by the council on that basis but the recommendation proceeded on an “error of law” because the section 75 agreement entered into “cannot achieve that purpose”, it was submitted.

Permanent planning permission existed for the operation of fish farms at Etive 1 and 5 which could be used by parties other than Dawnfresh holding the necessary leases of the seabed from the Crown Estate and other consents.

Thus when Dawnfresh’s equipment at those sites is removed, replacement equipment could be installed and the operation of fish farms could legitimately continue.

Therefore, it was argued that the required rationalisation of fish farming would not be achieved and the rationale behind the grant of permission “fatally undermined”.

However, the Lord Burns said that once Dawnfresh complied with the terms of the section 75 agreement, no fish farm equipment will exist at the two sites.

“After the removal of the existing equipment, it will be necessary for anyone proposing to place fish farming equipment at Etive 1 or 5 to obtain planning permission to do so and without such permission no lease from the Crown Estate would allow such activity,” he explained.

In a written opinion, Lord Burns said: “The council have decided to rationalise fish farming activity by the grant of planning permission for Etive 6 and the terms of the section 75 agreement. I am unable to conclude that those decisions are illegal, ultra vires or in any way unreasonable. It is not for this court to interfere in the exercise of the planning authority’s discretion in this regard.”