ENVIRONMENT AND PROTECTIVE SERVICES COMMITTEE: 31 MAY 2011

APPLICATION FOR PLANNING PERMISSION FOR DEVELOPMENT OF NEW ATLANTIC SALMON FISH FARMING SITE COMPRISING 20 NO. 24 SQ METRE SQUARE CAGES IN TWO GROUPS AND COMPLEMENTARY SHELLFISH SPECIES ON 6 NO. 200 M LONGLINES AT GROAY LINGAY ISLANDS, SOUND OF HARRIS (REF. NO. 10/00468/FFPA) Report by Director of Development

PURPOSE OF REPORT Since this proposal has received more than three letters of representation from separate parties which contain matters which are relevant material planning considerations, the application cannot be dealt with under delegated powers and is presented to the Comhairle for a decision. COMPETENCE 1.1 There are no legal, financial or other constraints to the recommendation being implemented.

SUMMARY 2.1 This is a planning application by Mr Andrew Rodger, Berneray, North Uist for the development of a new fin-fish and shellfish farm in marine water between the islands of Groay and Lingay, on the east side of the Sound of Harris. The development comprises 20 no. 24 sq metre square cages groups (for Atlantic Salmon) sited in two groups of 10 cages (5 x 2 cages per group). The groups are sited at right angles to each other with a feed barge sited between and 6 no. 200m long longlines (for the growing of shellfish (and seaweeds)) moored parallel to the long axis of the above cages; the long-lines anchored within the same mooring system that will secure the fish cages in position. The cultivation of seaweed does not fall within the definition of ‘development’ and is therefore not subject to planning control. The site would be serviced from Berneray Harbour and Otternish slipway.

2.2 One petition (with 76 signatories), an on-line petition from ‘Save our Seals’ (with 1013 ‘signatories’) and 96 written representations cite objections and issues including failings in fulfilling the statutory requirements and procedures of Environmental Impact Assessment (EIA) and planning, need for EIA, adverse impacts on the National Scenic Area; adverse impact on marine species, primarily otter, common and grey seal populations, cetaceans; birds (in particular cormorant), but also other species; conflict between some of the above as predatory species and the proposed fish farm; risk of farmed fish escape, lice and disease and resultant impact on wild fisheries; socio economic impacts including adverse impact on tourism, impact on navigation, cultural heritage, and neighbouring use; setting of precedent for further fish farm development in the area; noise, light and waste pollution; unsuitable site conditions (depth, bathymetry, exposure, flushing), breach of disease fire-break; pen type pre- disposed to disease; and proposed farm unsustainable.

2.3 In assessing an application for planning permission the Comhairle must base its decision on the statutory Development Plan unless material considerations indicate otherwise. The proposal has been assessed against the Development Plan and consideration given to material considerations including Scottish Government Guidance, and relevant third party representations. There are no objections from statutory or other consultees. The proposal has been assessed as complying with the Development Plan and while there are relevant material planning considerations, it is judged that none either individually or collectively carry sufficient weight to justify refusal of the application. Planning conditions are proposed to address issues that require management through the planning system. It is recommended that the application be approved subject to the conditions shown in Annex A to the Report. RECOMMENDATION 3.1 It is recommended that the Comhairle APPROVE the application subject to the conditions shown in Annex A to the Report.

Contact Officer Morag Ferguson/Keith Bray e-mail: [email protected] ANNEX A Schedule of proposed conditions (Attached to report) B Location plan and charts C EIA screening opinion of CnES D EIA Screening Direction of Scottish Ministers E Consultation responses of SNH, Marine Scotland, SEPA and DSFB Background Papers: Planning Application 10/00468 (with Appendices) and a copy of detailed representations will be placed in members’ lounge in advance of the Committee meeting.

REPORT DETAILS REPORT STRUCTURE 4.1 The Report is structured as follows: Section 5 Description of the proposal Section 6 Legislative framework and duties of the planning authority Section 7 Summary of representations Section 8 Consultee responses Section 9 Comments from applicant Section 10 Planning history Section 11 Western Isles Development Plan Policy considerations and response Section 12 Material Considerations - Scottish Planning Policy and comment Section 13 Material Considerations – comment on representations Section 14 Summary and conclusions

DESCRIPTION OF THE PROPOSAL 5.1 This is an application for detailed planning permission for the development of a new fin-fish and shellfish farming site at a currently undeveloped location between the islands of Groay and Lingay in the Sound of Harris. The development comprises 20 no. 24 sq metre square cages groups (for the growing and feeding of Atlantic Salmon) sited in two groups (5 x 2 cages per group) with one group sited at right angles to the other with a feed barge sited between the two cage groups and 6 no. 200m long long-lines (for the growing of shellfish (and seaweeds)) moored parallel to the long axis of the above cages. The long-lines are to be anchored within the cages’ mooring system. Seaweed cultivation does not fall within the definition of ‘development’ and is therefore not subject to planning control. The application site to the limit of the moorings extends to 7.02 ha while the surface area actually covered by equipment extends to circa 1.58 ha. The proposed biomass of Atlantic salmon is 1522t with an estimated biomass of 159t of shellfish.

5.2 The proposed farm is sited between the islands of Groay and Lingay in the Sound of Harris. The site is located circa 8.7km due east of the Berneray Harbour, North Uist and 6.9km due south of Leverburgh Harbour, Isle of Harris. The closest settlements are Strond and Borrisdale on Harris at approximately 5km (3 miles) distance. The site is detailed in the plans attached at Annex B to the Report.

5.3 The proposed site lies within the South Lewis, Harris and North Uist National Scenic Area (NSA).

5.4 A valid planning application for the proposal was submitted by Mr Andrew Rodger, North Lamerick, Berneray, North Uist on 27 August 2010. 5.5 The planning application comprises the following: • Planning Application Form • Summary of likely significance of effect of the development on the environment • CAR Discharge Licence • Design statement • Appendix 1 – Project Overview • Appendix 2 – Charts and Plans • Appendix 3 – Nutrients • Appendix 4 – Hydrographics, Modelling, Benthic Grab and Video Survey • Appendix 5 – Medicines and Chemicals • Appendix 6 – Proposed Environmental Management System • Appendix 7 – Codes of Practice • Appendix 8 – Seabed Integrated Multi-Trophic Aquaculture (sIMTA) • Appendix 9 – Presentation of visual appearance of Development • Appendix 10 – Note on Structural integrity of cages, nets and moorings • Appendix 11 – Navigation Considerations • Appendix 12 – Wildlife Interactions

5.6 In addition to the above, the following additional information was submitted in response to requests for further information or in order to aid assessment of issues raised through representations: • Update to Appendix 2 – Figure 6 – Section AA • Additional notes on Management Areas and Sea lice • Additional information to Appendix 8 – shellfish biomass and effect • Additional information to Appendix 9 – LSVIA • Additional information on Seals and Cormorants – Appendix 12.

LEGISLATIVE FRAMEWORK AND DUTIES OF THE PLANNING AUTHORITY

THE TOWN & COUNTRY PLANNING (SCOTLAND) ACT 1997 (AS AMENDED) 6.1 Marine Fish Farming came into the jurisdiction of the planning system on the 1 April 2007. In assessing an application for Planning Permission for a Marine Fish Farm, the Comhairle must base its decision on the statutory Development Plan unless material considerations indicate otherwise. The development proposal is therefore assessed against the Development Plan and consideration given to material considerations including Scottish Government Guidance, and relevant third party representations.

THE ENVIRONMENTAL IMPACT ASSESSMENT (SCOTLAND) REGULATIONS 1999 (THE EIA REGULATIONS) 6.2 Intensive Fish farming is a type of Development identified in Schedule 2 Column 1 (Agriculture and Aquaculture - 1(d)) of the EIA Regulations. The proposed development required to be screened, to establish its likelihood of causing a significant effect on the environment, as it is sited within an area defined in the EIA Regulations as sensitive (a National Scenic Area) and exceeds each of the undernoted thresholds in the Regulations. • the installation resulting from the development is designed to produce more than 10 tonnes of dead fish weight per year; • where the development is situated in marine waters, the development is designed to hold a biomass of 100 tonnes or greater; or • the proposed development will extend to 0.1 hectare or more of the surface area of the marine waters, including any proposed structures or excavations. 6.3 The growing of shellfish species on long-lines within close proximity to the fin-fish cages form part of the development. 6.4 While shellfish does not fall within the statutory definition of ‘fish farming’ in the EIA Regulations, the integrated nature of the fin-fish and shell fish farming proposal is such that the significance of environmental effect of the shellfish aspect of the development was considered in the course of screening under the EIA Regulations.

THE CONSERVATION (NATURAL HABITATS, ETC) REGULATIONS 1994 6.5 The Conservation (Natural Habitats etc) Regulations 1994 make provision for the implementation in the UK of the EU Habitats Directive. Regulation 3(4) of the Regulations state that ‘..every competent authority in the exercise of any of their functions, shall have regard to the requirements of the Habitats Directive so far as they [the requirements] may be affected by the exercise of those functions.’ 6.6 Members are advised that the Comhairle as competent authority is required to have regard to the requirements of the Habitats Directive in exercising their function as a planning authority.

BIODIVERSITY DUTY 6.7 All public bodies, including planning authorities, have a duty when exercising their respective functions to further the conservation of biodiversity under the Nature Conservation (Scotland) Act 2004, so far as is consistent with the proper exercise of those functions. SPP defines the term ‘biodiversity’ as the variability among living organisms from all sources including terrestrial, marine and other aquatic eco- systems and the ecological complexes of which they are part. This includes diversity within species, between species and of ecosystems (UN Convention on Biological Diversity, 1992).

6.8 In satisfying its duty under Section 1 of the Nature Conservation (Scotland) Act 2004 (the 2004 Act) to further the conservation of biodiversity it is necessary for a planning authority in assessing planning applications to make an assessment of any relevant impact on biodiversity, if appropriate to consider proposals for mitigation and if reasonable and necessary, to impose conditions.

OTHER REGULATORY CONTROLS PERTAINING TO FISH FARMING 6.9 The responsible authorities and control regimes (other than planning) that relate to marine fish farming can be summarised as follows: • SEPA - The Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR) - sets limits upon the scale and rate of discharges from fish farm sites. It requires any effluent to be assimilated and broken down by natural processes, ensuring no lasting impacts or lasting accumulation of pollutants. • Marine Scotland (MS) has statutory responsibilities for the health of both farmed and wild fish. Health of farmed fish is dealt with under ‘The Aquatic Animal Health (Scotland) Regulations 2009’. These Regulations implement the Council Directive 2006/88/EC on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals. The 2009 Regulations requires the authorisation of all Aquaculture Production Businesses (APB's). APB's are defined as any undertaking, carrying out any of the activities related to the rearing, keeping or cultivation of aquaculture animals, and include amongst others: finfish farms; molluscan shellfish farms; and crustacean farms. All new fish and shellfish farms are required to apply for authorisation before any development takes place. Authorisations are issued subject to a business or establishment meeting certain conditions. The conditions for authorisation include that businesses or establishments must:  Provide and maintain details of their business to allow the publication of a publicly available register of APB's;  Keep and make available to the FHI, movement and mortality records, including mortalities during transport and movements of dead fish;  Participate in a risk based surveillance scheme;  Implement acceptable Good Hygiene Practice (i.e Bio-Security Measures Plan);  Notify the Scottish Ministers of breaches in containment;  Provide reasonable assistance and access to Fish Health Inspectors and any person accompanying them, to farm sites for inspection and sampling as required. • Marine Scotland enforces provisions on containment and parasite (sea lice) control under ‘The Aquaculture and Fisheries (Scotland) Act 2007’. The Acts provide for a series of information gathering, inspection and enforcement measures aimed at controlling parasites on fish farms and shellfish farms and at improving, in respect of fish farms only, the containment of, prevention of escape of, and recovery of escaped, fish. It also contains measures which regulate the movement of live fish with a view to preventing the spread of fish diseases. • Marine Scotland (Licensing), responsible for issuing the single marine licence covering navigation issues (previously catered for in the Coast Protection Act 1949 consent) and the FEPA Licence (deposits in the marine environment), licences to control seals and licences to disturb European Protected Species.

SUMMARY OF REPRESENTATIONS 7.1 Representations (in objection) have been received from the following (as of 14 March 2011): • Margarita Williams, Holmasaig Gallery, Quidinish, Isle of Harris; • Mr A G Scherr, Borve Cottage, Borve, Isle of Harris; • Mrs S M Jourdan, Kyles House, Leverburgh, Isle of Harris; • Alison Johnson, 1 Strond, Isle of Harris; • Martin Jourdan, Kyles House, Leverburgh, Isle of Harris; • Ms Erin Smith – by email; • John & Gilly Hodkinson – by email; • Linda Onisiforou – by email; • J.A. Davis - Field Cottage, Picken End, Hanley Swan, Worcestershire; • Farquhar Macleod, Grimisdale Guest House, Leverburgh, Isle of Harris; • Victoria R Ellwood – by email; • Mr Mark Scholey, 3 Wheat Wharf, London; • David Bines Per Environmental Law Chambers Ltd, Mackintosh House, 5 Blythswood Square, Glasgow; • David Bines – by email (x 5); • Mr Andrew Moncrieff – by email; • W H Meikle, Currie, EH14 5JJ; • Mr Iain Brooksbank – by email; • Ms Kirsty Meikle – by email; • Mrs Elaine Midgley, 14 Bull Hill Cottages, Darwen, Lancs; • Catriona Coles, Taransay, 1 Blaney Avenue, Patna, Ayr; • Mr John L Evans, Taransay, 1 Blaney Avenue, Patna, Ayr; • Frank Law – by email; • Ms Lisa Law – by email; • Marine Concern per Mr Mark Carter, Tigh-na-Mara, Bonawe, Oban; • Nick & Ann Anderson, 1 Ferry Road, Leverburgh, Isle of Harris; • Animal Concern & Save Our Seals Fund, Per John F Robins, Post Office Box 5178, Dumbarton; • Gary & Tracey Scott - Carragh Ban, Strond, Leverburgh; • Mrs Hilda Gibson, Ladywell, Crowcombe, Taunton, Somerset; • Mr Peter Barton, Managing Director, Grassington Rangers Ltd, East Grinstead Road, North Chailey, Nr Lewes; • Douglas Woolf, Killegray House, Island of Killegray; • Jill McManners – by email; • Pete Wilkinson, Wilkinson Environmental Consulting Ltd, Blyth House, Bridge Street, Halesworth, Suffolk; • Michael Burke – by email; • Seal Protection Action Group Per Mr Andy Ottaway, PO Box 2673 Lewes, E Sussex; • Peter Urpeth, The Allotment, 6a New Street, Back, Isle of Lewis; • Petschi Family – by email; • Ian A MacLeod, 21 Strond, Leverburgh, Isle of Harris; • Mr & Mrs MacKenzie, Caberfeidh Guest House, Leverburgh; • Mrs Annick Merlin, 7 Quidinish, Isle of Harris; • Andrew Johnson, 1 Strond, Leverburgh; • Whale & Dolphin Conservation Society, c/o Moray Firth Wildlife Centre, Spey Bay, Moray; • British Divers Marine Life Rescue, Lime House, Regency Close, Uckfield, East Sussex; • International Animal Rescue, Lime House, Regency Close, Uckfield, East Sussex; • Mary & David Clegg, Ardvourlie Castle, Ardvourlie, Isle of Harris; • Mrs Sandra Cannon, 19 Whitethorn Gardens, Croydon, Surrey;

• Mrs Carole Jenkinson, 28 Carlton Avenue, South Croydon, Surrey; • Catriona Clements, 39A Outend, Coll, Isle of Lewis; • Anna Reid – by email; • Niall Stewart, Reay Cottage, Back, Isle of Lewis; • Gordon Cumming, Borve Lodge Estates; • RSPB Scotland, Office 2 Clintons Yard Offices, Rigs Road, Stornoway; • CP Merlin, 7 Quidinish, Isle of Harris (x 3); • CP Merlin, 7 Quidinish, Isle of Harris - 3 Page Petition – 76 signatures; • Christopher Ross, Bridge House, Finsbay; • Marine Harvest, Blar Mhor Ind Est, Lochyside, Fort William; • Mrs Virginia Murray, Quercus Bluff, The Park, Painswick, Glos; • David & Brooke Murray, Quercus Bluff, The Park, Painswick, Glos; • Hugh Taylor, Briarcliffe, Carr Bank Road, Carr Bank, Milnthorpe, Cumbria; • Tara Seal Research and the Seal Conservation Society, 14 Bridge Street, Killyleagh, Co. Down; • D A MacKenzie, Cleiseabhal, 10 Glen, Leverburgh, Harris; • Mr Nick David, Ensay House, Leverburgh; • Jane Edwards & Dave Thomas, 8A Strond, Leverburgh, Isle of Harris; • Mr Gavin David, Ensay House, Leverburgh; • Prof. Michael L.G. Gardner, Hazelhurst Brow Farm, Malvern Road, Bradford; • Hebridean Whale & Dolphin Trust, 28 Main St, Tobermory, Isle of Mull; • David Hall, Barn Cottage, Hawkshead, Ambleside, Cumbria; • Ann Palmer & Peter Lyons, ‘Druideag’, 44 Gress, Isle of Lewis; • Pippa Stevens, Cnoc an T-Sithean, Borrisdale, Isle of Harris; • Tony Warburton MBE, Wildwood, Monk Moors, Eskmeals, Cumbria; • Compassion In World Farming, River Court, Mill Lane, Godalming, Surrey; • Anne Milne, Cnoc an T'Sithean, Borrisdale, Leverburgh, Isle of Harris; • Gillian Russell, 12 Pinewood Avenue, Aberdeen; • Orkney Seal Rescue, Dykend, St Margaret's Hope, Orkney; • Cornwall Seal Group – by email; • Adam Bond – by email; • Mr Greer Hart, President of the Scottish Tree Trust – by email; • Myrna R Forrester, 210 Springfield Road, Aberdeen; • The Shellfish Network – by email; • Viva! and the Vegetarian & Vegan Foundation, 8 York Court, Wilder Street, Bristol; • Mr Nigel Smith, Breakish, Isle of Skye; • Scottish SPCA – by email; • Ms Laurie McGuire, Resident of Port Glasgow, Inverclyde; • Dr S D Graham, Millershaw, Milton Brae, Milton by Dumbarton; • On-line Petition ‘signed’ by 1013 people – Save Our Seals Fund Per John F Robins – by email; • Mr Aran Mathai, 27 Mill Rd, Cambridge; • Cris Iles – by email; • Prof David J Bellamy, OBE, The Mill House, Bedburn, Co. Durham, DL13 3NN; • Bruce Sandison, Hysbackie, Tongue, by Lairg, Sutherland.

Representations (in support) have been received from the following (as of 14 March 2011): • South Harris Community Council, Per Alan A Ross; • Berneray Community Council, Per Ian F Hoyle, Clerk to BCC.

7.2 The full terms of the representations can be read at the Development Department and will be placed in the Members’ Lounge as a background paper in advance of Committee. They can be broadly summarised as follows:

7.3 Legal Objections by the Environmental Law Chambers (Aligned with by c 20 parties)

7.3.1 Legal Objections re EIA Screening • Purpose is to persuade the Council that the project must be subjected to EIA. In the event that the Council concludes that the project should not be subjected to EIA, it is likely that objectors will seek to interdict the Council from proceeding to grant planning permission pending a judicial review of the negative screening opinion.

7.3.2 Timing of objections • If concluded to be EIA development, then the proposed deadline for receiving representations will have to be extended. • Although there is no statutory requirement we would expect the Council to receive, consider, and take account of any representations to the EIA Screening request. • At present, then, objectors require to prepare their representations in relation to both the Screening Request and the Planning Application before they have the opportunity of considering the responses from the statutory consultees. • In order to make the process of 3rd party representations meaningful, 3rd parties ought to be granted a further period of at least 14 days, following the deadline and publication of consultee responses to make supplementary submissions.

7.3.3 The Council’s legal duties • If a project qualifies to be subject to EIA, it is unlawful to subject it to a process that is anything less than formal EIA. • The EIA Directive is a ‘fundamental instrument’ of EU environmental policy. One of the important aims of which is to bring direct public participation into decision-making where those decisions may have significant environmental effects. • "The [EIA Directive] requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an [EA]…'made available to the public’ and that the public should have been "given the opportunity to express an opinion" … "… the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis. "…The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. • A project which requires EIA cannot be dealt with in any way other than the formal EIA process established under EU law, including not just some public participation, but the specific public participation required by Article 6(2) of the Directive [per Lord Hoffman]. • By triggering EIA, the planning authority also ensures that wider considerations are properly factored into the eventual planning decision, including such important matters as alternative sites considered by the applicant. • Moreover, it is important to bear in mind the Council’s wider legal duties under EU law. Every local authority is under an individual duty (as an ‘emanation of the State’ in EU law terminology) to take all appropriate measures to ENSURE fulfilment of the objectives of the EIA Directive. • In the planning context, it is therefore for the planning authority to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment. It is therefore incumbent on the planning

authority to ensure that it does not merely adopt or rubberstamp the reasoning of the statutory consultees. It must, instead, stress-test the conclusions of the statutory and exercise its own judgement (while keeping its legal duties to the fore) to ensure that its conclusions and decisions lead to the objectives of the EIA Directive being fulfilled. • In particular, were the Council to take the view that the applicant has produced such copious amounts of information that the statutory consultees cannot envisage what more information they might require, it would STILL be unlawful for the Council to conclude that a process tantamount to EIA had been undertaken. There is no such thing as tantamount to EIA. The duty of the Council at the stage of responding to a screening request is to consider whether the project is likely to have a significant impact on the environment, NOT to take the view that, whatever the impact (even a significant one), the mitigation measures proposed by the developer appear satisfactory. …Moreover, by triggering EIA, the Council would be able to test whether the proposed mitigation measures might actually work, rather than merely relying on the applicant’s assurances. • Put simply, the Council cannot, deliberately or inadvertently, let a developer get away with submitting what is to all intents and purposes an Environmental Statement, while avoiding the EIA process. Here, there can be no doubt that the detailed information and appendices submitted by the applicant amount to an Environmental Statement. Had the applicant described that data as an Environmental Statement, then that fact alone (as it ought to have done) would have triggered EIA [EIA (Scotland) Regulations 1999, regulation 4(2)(a)].

7.3.4 The legal significance of EIA thresholds • Article 4(2) of the EIA Directive states that projects of the classes listed in Annex II are to be subject to an assessment ‘where Member States consider that their characteristics so require’. • The primary purpose of thresholds is to ‘determine’ which projects require EIA. (Otherwise, what is their legal purpose?). In relation to ‘intensive fish farming’ (which according to the statutory definition cannot include shellfish), Column 2 of Schedule 2 to the EIA (Scotland) Regulations 1999 sets 3 alternative thresholds (relating to (1) dead fish weight, (2) biomass, or (3) surface area). In addition, Regulation 2 provides that a development will also be Schedule 2 development if it is carried out in a ‘sensitive area’, which expression includes National Scenic Areas.

7.3.5 Threshold exceedence - Application • The present application exceeds no fewer than 3 of those separate thresholds, which may usefully be described (following the EIA Directive terminology) as relating to (1) Nature; (2) Size; and (3) Location in that: (1) NATURE - the development will produce biomass of 1521 tonnes [exceeding the 100t threshold by more than 15 times]; (2) SIZE - the development will have a surface area of 1.5 hectares [exceeding the threshold of 0.1 hectares, also by 15 times]; (3) LOCATION - the development is to be carried out in a sensitive area [the South Lewis, Harris and North Uist National Scenic Area]. • Although the applicant has described the surface area of development as amounting to 1.52 ha (which includes the cages and the longlines), the true extent of the surface area is much larger, as the applicant has not included the area of the walkways or the feeding barge. Indeed, based on the plan shown as Figure 9 of Appendix 2 to the application, the overall footprint is shown as 250m North-South and 240m East-West, making an overall area of 6 hectares – thereby ensuring that the application should be progressed as a major rather than a local application, and meaning that the overall area exceeds the threshold by a factor of 60.

• Putting it another way in relation to the scale of the development, and focussing purely on cages, even 2 of the proposed 24m x 24m cages would breach the EIA ‘size’ threshold on surface area, and yet the application is for 20 such cages. This reinforces our broad point that if a threshold is exceeded by a huge amount, it is suggestive of a significant impact. • In our submission, faced with (1) threshold exceedence on 3 separate criteria AND (2) such a magnitude of ‘exceedence’ beyond the quantitative statutory thresholds (i.e. exceeding the threshold not by a little, but by 1,500% or 15 times the threshold or more, depending on whether the applicant’s plan showing a 6ha footprint is correct), no reasonable planning authority, acting rationally, could reach any conclusion other than that the project in question has been determined to be subject to EIA. • Please note that if, notwithstanding the above considerations, the Council decides that EIA is not required, we hereby require the Council to provide detailed reasons for that decision, and this document should be regarded as an official request (pursuant to Mellor v Secretary of State for Communities and Local Government (Case C-75/08, judgement of 30 April 2009)…The statement of reasons will then assist in the subsequent framing of a further Petition for Judicial Review.

7.3.6 Planning interface with environmental regulator in EIA context • It has been recognised that in one very limited circumstance, the degree of scrutiny and public participation inherent in certain applications for environmental permits removes the need for those processes to be entirely duplicated by the planning authority. • It remains incumbent on the planning authority to ensure that public participation is actively engaged. It is not permissible for the planning authority to abrogate its responsibilities and simply to rely on SEPA’s views on environmental effects. • At the time when the screening procedures in relation to the previous application were being undertaken, SEPA, for example, noted that the applicant would be providing them with certain information as part of its application for a CAR licence. • That CAR licence has since been granted, but we emphasise that there is no public participation (of the nature required by Article 6(2) of the EIA Directive) involved in a CAR licence application. The extent to which SEPA has considered environmental effects as part of the CAR licensing process is irrelevant for present purposes. It remains the case that it is the responsibility of the planning authority to ensure that the environmental effects of the project are considered holistically, as part of the planning process, rather than allowing some of those effects to be considered by other agencies outside the realm of the EIA process.

7.3.7 EIA and shellfish • Intensive farming of shellfish is included within the phrase ‘intensive fish farming’ in the EIA Directive. While it is accepted that the potential environmental impact from finfish and shellfish will not be identical, that is not to say that intensive rearing of shellfish can have no environmental impact. There is therefore no basis for the EIA (Scotland) Regulations 1999 excepting shellfish production from the notion of ‘fish farming’. • S26 of The Town & Country Planning (Scotland) Act 1997 defines fish farming as ‘the breeding, rearing or keeping of fish or shellfish (which includes any kind of sea urchin crustacean or mollusc’ and that s.166(1) of the Marine (Sc) Act 2010 defines a fish farm as ‘a place where fish or shellfish (including any kind of crustacean or mollusc) are bred, reared or kept’. • It is plainly absurd for shellfish development to be the subject of existing and future planning controls, but for such an essential element of the planning process as EIA to exclude shellfish (as a matter of domestic law) from its consideration.

• In our submission the Scottish EIA Regulations are clearly wrong in excluding shellfish. Consistent with the Council’s duty, as an emanation of the state, to ensure the fulfilment of the objectives of the EIA Directive, it is incumbent on the Council to consider the shellfish aspects of the application. • We recognise that this task may be difficult, given for example that there are no statutory thresholds in relation to shellfish development. However, that need not preclude the Council giving the matter consideration, and fixing its own thresholds. In our submission it would not be inappropriate for the Council to apply the same thresholds for shellfish as apply under the Regulations to finfish. If that were the case, then the proposed longlines (which are declared in the application to have an area of 0.12ha) would exceed the size threshold of 0.1ha. • For all we know, the shellfish aspects might also exceed any biomass threshold that the Council might choose to apply, but (in a notable omission) the applicant has failed to disclose any quantitative data in relation to shellfish production. • In the absence of such data it is surely impossible for the statutory consultees to give proper (or indeed any) consideration to the shellfish aspects of the proposal (assuming they have even been asked to). • We also note that the ‘Sea-based Integrated Multi-trophic Aquaculture’ system (SIMTA) proposed by the applicant is largely experimental. As such, it chimes loudly with the requirement in the EIA Directive and Regulations for the ‘complexity’ of any environmental impact to be considered. Although the applicant indicates that the shellfish are supposed to absorb nutrients from waste feeds and faeces, the application acknowledges that any development of the technology to date has been small-scale. • Faced with experimental technology and the potential for the environmental impacts from the finfish and shellfish to react with each other, and given the scale of the shellfish development (i.e. exceeding 0.1ha), it would appear that only by subjecting the overall project to EIA can the Council comply with their legal duties (which, since they derive from EU law, must be taken to have precedence over any counter-arguments under domestic legislation).

7.3.8 National Scenic Areas – the Council’s statutory duty • Although the legislative history of National Scenic Areas has been somewhat tortuous, the overriding legal obligations have remained the same. Whether reference is made to s.263A of the 1997 Act, or s.262B of the 1972 Act, the continuing obligation on the planning authority is to ensure that in exercising its planning powers, ‘special attention is paid to the desirability of safeguarding or enhancing [the NSA’s] character or appearance’. • Clearly, granting consent for a large fish farm can’t be said to ‘enhance’ the character or appearance of the NSA. Nor, for that matter, can it be said to safeguard it. The Council will also be aware of the decision in relation to the proposed fish farm at Inchmarnock where the application was rejected because of the visual impact that it would have on the Kyles of Bute NSA, including from such things as sunlight reflection from the feeding barge. We would suggest that such a decision clearly did pay ‘special attention’ to the desirability of safeguarding the NSA’s character. • Moreover, it is doubtful whether the Structure Plan properly recognises the need for the planning authority to comply with the above-quoted statutory obligation. Policy RM9 focuses on the need to ensure that the objectives of the designation and the overall integrity of the area are not compromised. However, the policy is silent on the issue of ‘enhancing’ the character and appearance of the NSA, and it is therefore difficult to see how the policy can be legally compliant if it has that omission. • In our submission, if the Council had indeed given ‘special attention’ to the desirability of safeguarding or enhancing the NSA, then it would not have been so eager simply to accept the views of SNH. Clearly, there needs to be evidence of the required ‘special attention’ having been paid, and given that it is the Council and not SNH that requires to give the ‘special attention’, it is clearly incumbent on the Council to do more than simply adopt the reasoning of SNH.

• It is also important, we would suggest, that the Council arranges a proper site visit. Rather than the photos of a very distant perspective provided by the applicant, we would suggest that in the context of the protection of a NSA, the Council may wish to view matters from Lingay island. • It should also be noted by the Council that they themselves granted planning permission for a sheiling on Lingay with a view to encouraging visitors to the area who would obviously come to appreciate the scenery and other characteristics of the NSA. It seems difficult to reconcile that encouragement with the visual damage, which the proposed application would have on the NSA, as seen from Lingay. • We also submit that in the context of a Screening Request, the requirement to give special attention to the desirability of safeguarding or enhancing the NSAs character and appearance indicates that a project which is located in an NSA and which also vastly exceeds the quantitative EIA thresholds, should clearly be made subject to the EIA process in order that the impact on the sensitive location can be fully considered. To do otherwise cannot be consistent with implementation of the ‘special attention’ duty in relation to NSAs.

7.4 Legal objections re planning application • We hereby adopt all of the foregoing arguments as part of our client’s objections to the planning application, and supplement those objections with those set out in the paragraphs below.

7.4.1 Legal Duty re Biodiversity • We note that by virtue of s.1 of the Nature Conservation (Scotland) Act 2004 the Council, in exercising its planning functions, is under a duty to further the conservation of biodiversity, and must have specific regard to both the Rio Convention and the Scottish Biodiversity Strategy. • It is interesting to note that the duty for English authorities is merely to ‘have regard to’ the purpose of conserving biodiversity, rather than to ‘further’ it. Plainly, any failure to ‘further’ the conservation of biodiversity would amount to a breach of legal duty. It is not clear to us in what way the Council approaches the implementation of this duty. • With the previous application, we consider that the Council took an odd approach to its duty, and one which was of doubtful legal standing, in that the Council’s own biodiversity officer reported to the Council that: • ‘I am of the view that that the Comhairle would not be furthering the conservation of biodiversity in approving this planning application. It is likely that the proposed development will have a negative impact on seals and otters in this area. I am not able to make an assessment of whether this is a significant negative effect, however, it will not ensure that the ‘conservation of biodiversity is encouraged and advanced’ as is expected by the biodiversity duty on public bodies’ [our emphasis] • Bizarrely, the Council then proceeded to issue a Screening Opinion in which they (wrongly) stated that, amongst others, their internal stakeholder departments had reported that the application ‘safeguarded their interests’. • It is to be hoped that this failure to take account of a material consideration will not be repeated with regard to the current application.

7.4.2 Conservation of Seals under Part 6 of the Marine (Scotland) Act 2010. • The applicant has provided information about how he intends managing seals. However, the legal backdrop on seal management has altered with effect from 1 September 2010 following the entry into force of most of the provisions of Part 6 of the Marine (Scotland) Act 2010. • There is no indication in the planning application that any of the provisions of Part 6 of the 2010 Act have been taken into account by the applicant (which is perhaps understandable if he prepared it prior to those provisions coming into force).

• We would therefore suggest that the Council will wish to ask the applicant to re- submit all relevant information on seal management so that the Council can be satisfied that it is in accordance with the new statutory regime.

7.4.3 Disturbance of Species • Various European protected species are referred to by the applicant including seals, otters and cetaceans. It is, of course, a criminal offence to deliberately disturb any such creature. • It is therefore of concern to see the excessively casual approach taken by the applicant. There is express acknowledgement that cetaceans are likely to be disturbed by ADDs, yet the applicant’s focus is on the significance of that disturbance and potential mitigation, rather than the fact of the disturbance. Also, substantial parts of the proposals in relation to seal disturbance [in Appendix 12 of the application] are purely aspirational. • It is difficult to avoid the conclusion that by allowing a fish farm to be developed in the centre of a seal colony, and in an area that is also frequented by otters and cetaceans, and with a significant cormorant breeding colony, the Council would be facilitating several breaches of wildlife protection laws. • It is one further justification for why the entire application should be subjected to EIA, in order that the wildlife impact can be properly considered, rather than merely relying on the reassurances of the developer.

7.5 EIA and EIA Procedure • This development should have been subject to a full Environmental Impact Assessment (EIA), as it will be the largest single fish farm in the Western Isles, exceeding all 3 EIA thresholds substantively:  the development is to be carried out in a sensitive area [the South Lewis, Harris and North Uist National Scenic Area];  the development will produce biomass of 1,521 tonnes [exceeding the 100t threshold by more than 15 times];  the development will have a surface area of 1.5 hectares [exceeding the threshold of 0.1 hectares, also by 15 times]. • As these thresholds are exceeded by so many times, combined with the evidence that suggests that there will be significant impacts on the wildlife adjacent to the proposed site, it is obvious that the impact of the development will be very significant at and adjacent to its location. • Failing to advise that a full EIA be undertaken to establish the extent of this impact and damage is a failure the Comhairle’s legal duty. • There is a statutory requirement to conserve the wildlife and scenic environment that comprises the present ecosystem and National Scenic Area in the Sound of Harris, and a failure to obtain an EIA would be a derogation of this responsibility by the Council. • It is essential to use accurate and up-to-date information to assess the situation as it is now, and not base any assessment of the significance of the impact on totally inaccurate and out-of-date information that the application contains. • Allowing this proposal to go ahead without having advised that a full EIA assessment be undertaken will create a situation where culling of seals will be inevitable. The 2008 count for Common Seals was for 67 adults and as it is not known where these pupped, a full impact assessment should have been carried out to find out this information. • It is obvious that the impact of this fish farm on the existing biodiversity on both Lingay and Groay will be extremely significant. When all factors are looked at together and not in isolation a reasonable, responsible and competent person and/or authority cannot fail to conclude that the impact of the fish farm will be extremely significant and damaging. • The lack of an EIA is a very serious omission in terms of providing sufficient information on which an application of this type can be adequately assessed. • Surely under the terms of the Marine (Scotland) Act the Council is duty bound to insist on an EIA before any decision is made? • A Strategic Environmental Assessment (SEA) might be in order under EU law.

• No determination should be made until an Environmental Statement (ES) submitted by the Applicant has been subject of public consultation. • An independent and objective EIA is required:  To make the Council aware of the damage that would ensue to the islands in the Minch and surrounding areas;  To allow close scrutiny and review of the impacts the development is likely to bring;  To assess impact on the NSA;  To assess impact of this fish farm on the existing biodiversity on both Lingay and Groay;  To assess the inevitable impact on and conflict with grey seals, otters and wildlife using the area;  To supply (1) full details, with GPS locations, of seal haul-outs and pup locations of each species and (2) common seal breeding data for the area with an analysis of the reasons for the apparent decline locally;  To collect two years data on marine mammals and their habitat and use of the area;  Assess the pollution and the effect of fish farm activities;  To provide recent data on cormorant breeding numbers and the location of colonies and feeding areas in relation to the proposed development, together with evidence to show the impact of locating and operating a fish farm in such close proximity and proposals for mitigation of any recognised ill effects;  To assess impact on such a pristine and sensitive wildlife location;  To fully examine the potential impacts of locating and operating a fish farm in this important marine habitat;  long term environmental harm to the development area, its neighbouring seabed environments, shellfish, the surrounding waters and their eco- systems;  Impact on migratory salmon and sea trout populations arising from lice & chemicals;  Impact of marine industrialisation on existing wildlife/marine creatures in the immediate area;  Assess impact on biodiversity, scenic value, natural and cultural heritage, landscape character, sustainability, tourism of the immediate and wider area and thus the local community;  To look at all factors together and not in isolation i.e. in relation to both seals and cormorants: nationally significant colony sizes, highly sensitive to human disturbance, need for remoteness, rare favourable colony site habitats, close proximity to the proposed site, colonies having direct line of sight to the fish farm;  To consider the wider implications of this proposal for the local wildlife and truly sustainable activities in the area;  To assess the anti-predator measures proposed. This assessment should include assessment of local cetacean populations, measurements of propagation and likely zones of disturbance to cetaceans from ADDs. The use of ADDs on aquaculture sites needs to be carefully assessed

7.6 Impact on & Interaction with Wild Salmonid • The Atlantic Salmon is a conservation species under the EU Habitats and Species Directive and the Welfare of the wild salmonid population of the Obbe system in South Harris is vital for the conservation of this endangered species. • The site sits astride/too near the main salmon and sea trout migratory routes/runs from the Obbe system and Western Isles populations migrating through the Sound of Harris. • The migration routes of the salmon and sea trout of the Obbe system are totally unknown and may include the location and it would be foolhardy to jeopardise this natural resource. • The proposed farm sits astride the main migratory route of the wild salmon for the Western Isles.

• This or further fish farms present serious threat and potential endangerment to population of natural (wild) salmonid species (salmon and sea trout) in the Western Isles, Sound of Harris and Obbe fishery system. • Migratory Salmon smolts, embarking on their journey to the Atlantic to mature and the mature salmon leaving their respective rivers to return to the sea after spawning, would have to pass this proposed fish farm. • Adult salmon passing the proposed farm site and trout passing or feeding in coastal areas would pick up sea lice which have fallen from farmed salmon, weakening/killing the wild fish, and leading to diminishment of population. • The general population of wild sea trout from the surrounding rivers/streams situated on the surrounding main Islands will be endangered as wild sea trout, when they go to sea, normally remain around the coastal areas of their home rivers to feed; it is inevitable that they will come into contact with the proposed fish farm and become infected from sea-lice infestations at the farm and result in a severe detrimental effect on the sea trout population. • The feeding grounds of the sea trout populations in the Obbe system are completely unknown and may well include the immediate location of the proposed development. • A fish farm (even if well managed) in this area would undoubtedly cause an increase in the number of sea lice in the waters and probable transmission of sea lice to wild fish. • Sea lice infestation of wild stock would most probably result in a severe depletion of numbers and a marked decline in the population of any returning mature wild salmon. This is the view now held by eminent marine biologists. • Endangerment consists of sea-lice parasites, disease, infections and other associated ailments pertaining to farmed fish and its industry. • There appears to be implicit confidence by the applicant that the tidal current in the Sound of Harris will prevent damage from sea lice, but there is no scientific evidence to support this. • The often inhospitable weather and rough sea conditions prevalent in the Outer Hebrides, the exposed location of site means increased likelihood of containment failure leading to high numbers of escapees. • Fish farm escapees have been scientifically proven to be more aggressive and prone to disease and infection than the wild Atlantic salmon. They have a tendency to displace the wild salmon when competing for food. • The water environment will be polluted by effluent and neuro-toxin chemicals (used to kill parasitic sea lice) from the proposed farm having a deleterious effect on the quantity and quality of fish returning to the Obbe system. • Sea lice such as Lepeophtheirus salmonis tends to become hugely concentrated around fish cages. • Increase in the wild fish stocks is due to the good diligent husbandry and the general improvements made to the rivers by the members of the various angling associations.

7.7 Pollution, Waste, Water Column, Benthic and Benthic Biodiversity Impacts • The proposed fish farm will introduce pollutants and create pollutants in the following forms:  Inputs in the form of: commercial feed (containing phosphates, nitrates and steroidal hormone growth enhancers, anti fungal treatments and colourants); lice treatment, chemicals and other pesticides (potentially neuro-toxic, containing organophosphates);  Outputs in the form of: untreated faecal waste, nutrients (nitrates), uneaten food, mortalities;  Residual waste in the form of plastic bags, ropes buoys etc. • The receiving environment is currently a wholly undeveloped pristine marine environment with live diverse benthic community – fish, invertabraes, crustaceans, seaweed kelp and algae, and also coastal seaweed. • The proposed site has hydrographical limitations (depth, average current speed, flushing) i.e. proposed farm located over an 18m hollow shallowing to 13m; only

3-5m depth between bottom of nets and floor of sea-bed at mean low water spring, even lower with cones (to catch mortalities); not deep enough over a large enough area to accommodate twenty cage structures each of 24sq m and 10m net depth; Farm infrastructure will dry on drying reef shown on the admiralty chart. • Hydrographical conditions – Proposed site is over a hollow – will result in accumulation of chemicals, faeces and waste feedstuffs; Poor dispersion/lack of water exchange will not allow sufficient dispersal of toxins. • The site is relatively enclosed by islands and reefs affecting dispersal and flushing. • There will be an unacceptably high stocking density of farmed fish. • The proposed farm will result in adverse impacts including:  Damage to benthic environment and benthic communities;  Deposition of faeces (contaminated with antibiotics and other medicines) on the sea bed on a daily basis will result in enrichment of water column through release of nutrients causing accelerated growth of algae and higher forms of plant life and anoxic conditions on the seabed; also result in adverse effect on the micro-organisms and zoo-plankton, damaging the sedimentary layers and causing a break down in the marine food chain;  Discharge of medicines and neuro-toxin chemicals will affect existing marine life, particularly the crustacean populations;  Combined discharges will impact on benthic biodiversity e.g. sand-eels, starfish, crabs, etc;  Adverse impact on wildlife and biodiversity in vicinity of site due to pollution of food-chain - food foraged by seals, otters, cormorants, and other sea-life; • Seaweed in inter-tidal zone contaminated with resultant impact on sheep which graze on seaweed on Groay and around the island coasts. • Uneaten food drifts off in the currents, attracting wild fish species and their predators to the area. • Shallow sites more prone to disease and pollution i.e. less than 15m; 30m-50m depth is ideal. • Proposed salmon farm will contaminate the proposed adjoining shellfish farm area, rendering shellfish unfit for human consumption. • Fig.6 is incorrect - applicant should be asked to represent it correctly. • Rubbish/litter, especially items that can be mistaken for prey, cause mortalities in a wide range of marine species. 7.8 Landscape & Visual Impact • The Sound of Harris is designated a National Scenic Area (NSA), and the Comhairle has an obligation to maintain it as such. • The negative impact on this National Scenic Area which, by definition, should be safeguarded and enhanced as part of the national heritage, a direct responsibility of the Comhairle. • This development will have an impact on the panoramic quality of the NSA which is contrary to the requirements of s.263A of the 1997 Act or s.262B of the 1972 Act of ‘safeguarding or enhancing [the NSA’s] character or appearance’. • This is a designated National Scenic Area (one of only 40 in the British Isles) which the Council and Scottish Natural Heritage are failing to protect. • The Sound of Harris is a unique area of scenic value, and as such is of international importance. • I object to the development on landscape grounds; in this area of unrivalled beauty; in an area nationally recognised for its scenery and remoteness. • The fish farm will be located within a NSA. It is in pristine condition with no development. • I strongly believe the construction of a fish farm would greatly detract from the unique scenic beauty of this area. • The proposed structure would be in view from South Harris, and also from the Berneray - Leverburgh ferry.

• Application identifies picture as ‘view from the car deck’. The photomontages of the proposed site are seriously misleading. The view from the ferry observation lounge and open deck is 6-7 metres above sea level. Passengers do not travel on the car deck. This view point (car-deck) is partly obscured by Vatem and other reefs, minimising the visual impact. From the ferry and indeed from any other craft the farm will be much more intrusive than suggested, and the safety lighting and buoyage that will be required will make it even more so. • The passengers have a view of the intended site of 1.5 km of the trip. It is obscured from the Uists but from the ferry and from Kyles to Borrisdale it is in full view. • This …would be a fearful blot on the landscape to the human eye. • This is a National Scenic Area and as such should have protection from this kind of development. • We do not feel that the location is at all suitable in a NSA of all places. It will impact enormously in an outstanding position. • The impact of such a development on such a beautiful area will be massive and probably irreversible. • I fear the proposed siting would not enhance the environment. • This is an exceptionally beautiful area and, as has been experienced elsewhere, fish farms can devastate coastline. • The introduction of such a large man made enterprise along with all the supporting structures and accessories is unthinkable. • The fish farm will be located within a National Scenic Area (NSA). It is in pristine condition with no development. • The proposal would …be unsightly in a hitherto unspoilt part of the National Scenic Area. • The visual impact on the landscape will be pronounced, in particular the proposals for lighting. The area around Leverburgh Pier has, over the past 20 years created much need for road and other lighting and this development would only add to that. • The application includes photomontages, but does not provide significant details regarding potential receptors or visual and landscape impacts. Could the Local Planning Authority clarify whether a full Landscape & Visual Impact Assessment is needed to assess the potential impacts of a large new farm in a National Scenic Area.

7.9 Noise & Light Pollution and Nuisance • The likely effect of noise from the automatic feeders, generators etc have not been addressed or assessed. There is no mention of how these noise levels will be reduced in order to prevent unacceptable disturbance to wildlife and humans. • Noise and continual activity from the proposed site will be a significant problem. The daily activity of boats and people (for up to 11 hours a day, not including out of hours working) will be extremely disturbing for all wildlife. • The automated feeding station will be audible over a wide area. • The proposal would introduce noise pollution into a tranquil area. • The devices proposed to deter particular sorts of wildlife will add sound pollution to the growing light pollution levels. • The development would be lit at night which would add to the burgeoning light pollution already emitted by the new pier, ferry terminal and associated buildings/activities at Leverburgh. • The infrastructure and operational alarm and siren systems needed to carry out the farming is hugely intrusive.

7.10 Navigation, Anchorage & Commercial Fisheries • A fish farm would interfere with the course of the landing craft when we take the sheep to and from the islands of Groay and Scaravay.

7.11 Socio-economic, Access and Recreation • The size and visual impact of the development will impede tourism within the Sound of Harris, part of the National Scenic Area because of its unspoilt beauty and will cause damage to the amenity and economic value of this priceless area of raw natural beauty. • The development will impact negatively on migratory salmon in the Leverburgh fishery which has recorded some of the best catches this year. It will also negatively impact on the Obbe system and the dependant angling economy which provides jobs and services for tourists and whose loss would have a detrimental economic impact on an important aspect on the local economy. • The development threatens marine sea life and thus economic tourism such as boat trips, tourist accommodation and food outlets. • The economic benefits of Road Equivalent Tariff including increased visitor number is threatened by one bad planning decision. • The negative impact of the development on wild fish stock and on seals, whales, porpoises and dolphins will result in a marked down turn in tourism. • Aquaculture can potentially contribute to the local economy provided that conditions are imposed on permission requiring that farm ownership is local, many people are employed and priority is given to local people. • Wildlife tourism is rapidly growing and supports a fragile economy provided fares remain affordable and natural heritage is protected. The location of a seal colony on a ferry route presents a unique viewing opportunity which will be lost if the development proceeds. • Biodiversity in the Sound should be protected by the Council. • Tourism including wild salmon fishing makes marginal businesses profitable with increased profits and employment in related enterprises. The loss of these jobs to provide 5 to 7 jobs demonstrates that the Comhairle is failing to protect the island’s economy. • The prospect of a National Parks status should ensure all development proposals are closely scrutinised. • The fish farm if approved will eventually be sold on and mechanised leaving few local jobs. • Filmmakers and artists currently able to celebrate the landscape and wildlife of Harris are alarmed by the increasing number of fish farms in sea-lochs and believe that ultimately costs outweigh the benefits in terms of loss of employment in tourist related industries. • The jobs generated in North Uist will be offset by the loss of visitors to Harris because of the damage to the special landscape and wildlife of South Harris. • Account should be taken of the revenue from tourism particularly eco-tourism which is growing rapidly and brings significant economic benefits to an area. • The Western Isles champions the notion of Marine National Parks which conflicts with the siting of a salmon farm in a sensitive area. • While National Parks status potentially can safeguard the local economy, it is unlikely that visitors would return to areas with fin fish farms where seals were culled and shot.

7.12 Location & Containment • Appendix 10 says that NO formalised wind and wave analysis was conducted for the site and gives a mean wave height and mean wave direction diagram. What is important is to see what is happening in the channel. • The climate data or wave climate analysis is not sufficiently area/site specific and assumes that the site will have the same exposure as the more sheltered sites in Harris and an area in the sheltered eastern lee side of North Uist. • The channel between Groay and Lingay will be subject to the same wind direction as the storm beach on Groay where wind and wave borne debris and rubbish have accumulated far in land. The site is very exposed to the prevailing SW’ly wind and to NW’ly winds.

• The application evidences a profound lack of detailed, site specific hydrological and meteorological data, such that it is surely impossible to sustain any claim as to:  the suitability of the gear proposed for use in this development;  the suitability of the site for the proposed development, and  the adequacy of the safety systems and procedures required to ensure that the serious risks that such developments can represent are adequately and lawfully addressed. • Where the site location is exposed, (as is this case) a wave climate analysis, (which includes an analysis of storm duration, severity and frequency) is essential in order that equipment, in particular moorings and anchors, can be adequately specified. • Cage/mooring damage, possible loss of equipment, vessels and stock can result from the under-specification of equipment relative to the sites location and exposure. • Cage/containment failure risks financial loss to the operator, escapes of large quantities of farmed salmon with serious implications for the status of wild salmon stocks in the area. • AKVA Wavemaster, are in a position to give warranty on use of the gear specified (for a significant wave height of 2.2 metres) but only if the information given in the first instance is correct. • Fishermen state that the 2 metre wave height around the area means nothing. ‘It’s only an average height’. Mean height is of no relevance to the ability of the equipment to survive the extreme, on which there should an additional safety margin on top. • I urge the Comhairle to insist that the applicant does proper and specific testing for the proposed site by experienced oceanographers and engineers between now and April. • The proposed shore base for this development is simply too remote to enable proper supervision, consistent and adequate monitoring, and for sufficiently robust and timeous response in the event of problems arising. • The risk of weather conditions prohibiting access to this site has been significantly underplayed in this application, and I am very concerned that the proposed base is simply too distant to ensure that the facility can be adequately run and monitored on a year-round basis. • Making a passage to the site in adverse weather and working on the site in adverse weather conditions are two different scenarios. The latter must never be underestimated. I do believe more detailed risk assessment is needed with this particular location. • The proposed site would be managed from nine miles away, by an operator who has not hitherto operated fish farms, in an area notorious for rough weather, the risk of damage to the pens and resulting pollution in an environmentally rich area, is so great that the precautionary principle should be applied. • Fish farms require daily maintenance – tidal restrictions in the Sound of Harris prevent the feasibility of servicing this facility from Berneray 365 days a year.

7.13 Operational issues • Juvenile fish would no doubt be imported from elsewhere with the possibility of importation of infectious salmon anaemia as has happened elsewhere in Scotland. • I have very serious concerns that this application is made with a total lack of any detailed and sustainable environmental management systems. By his own admission in these documents, the applicant does not have such systems in place, or even developed, and has no previous experience of operating a fish farm.

• The documents the applicant has supplied in support of this application do not establish to any reasonable level that he or his company is able to ensure or provide adequate mitigation against the well-established risks that such a fish farm represents to the environment in which it will operate, and the applicant's statutory assertions with regard to the safe operation of the proposed fish farm are simply not sustainable. • In the possible event of cage or containment failure due to severe climatic forces at the proposed fish farm site, I suggest that it be prudent for your office to establish from the applicant that suitable insurance cover is provided. I refer you paragraph 27, of the EU Directive 2008/56/E of the European Parliament and of the Council of 17 June 2008. • The Animal Welfare Act (Scotland) 2006 states that all captive animals must be tended every 24 hours. It is a criminal offence not to do so. I cannot see any contingency plans in the submitted package for weather and tide restrictions on access to the site. • Appendix 6 – Proposed Environmental Management system is the subject of concerns re:  Lack of accredited EMS and no timescale for achieving;  Inexperience of the applicant;  Corporate structures and administration not formed;  Lack of pre-start data on water quality to ensure safe operation of the facility;  Lack of operating procedures;  The future need to develop detailed data on feeding rates and monitoring calling into question accuracy of biomass/pollution predictions both in terms of the seabed and in terms of water quality;  The proposals with regard to mortalities not robust enough, or workable to ensure the safe working of this proposed development. Fish mortality rates can be very significant requiring the removal of many thousands of fish from the fish farm for disposal;  A failure to adequately manage mortalities can rapidly result in a very much increase risk of serious predatory attack on the fish farm nets, principally from seals;  No evidence that the prevailing sea water conditions or water clarity will enable adequate monitoring of mortalities via 'drop down' video? • Scottish Government figures on fish escapes show two principle causes of fish escapes both in terms of small scale incidents and mass escapes, and human error, along with predation is a principal cause of escapes. • Management Areas were established in January 2000 as a tool to manage ISA. Management areas are based on tidal excursions, and their primary purpose is to prevent the spread of disease through the stocking of single year classes, and the synchronisation of fallow periods. • Concern that the development of a new fish farm in Groay/Lingay will bridge a ‘firebreak’ between management areas 5c and 5b; thereby contributing to the potential spread of disease and compromise the sustainability of aquaculture throughout the Isles of Uist, Harris and Lewis. • At present there is a distance of over 20km between the farms in North Uist and South Harris. This distance provides a significant ‘fire break’ between management areas 5b and 5c (Figure 1). The development of a new site at Groay/Lingay will bridge the gap between the two tidal excursion areas, thereby providing a stepping stone for disease between the Isles of Uist and Harris. The erosion of the firebreak is a significant concern for farming companies operating throughout the Western Isles.

• The merging of these two areas poses a particular disease risk to farms situated along the west coast of Harris and Lewis. The most common strain of Pancreatic Disease (PD) around Harris and Lewis is sub type 5; a relatively benign serotype which results in relatively low mortality levels. Sub type 4 considered by Marine Harvest Scotland to be one of the most virulent strains in Scotland and can result in high mortality levels has been found at farms around Uist; The existing firebreak appears to be effective in preventing the transfer of serotype 4 and it is imperative it is maintained to prevent the introduction of Serotype 4 to Harris and Lewis. • The Scottish Government state that ‘Stocking a previously unused site that may bridge management areas should be avoided’, and ‘Fish Farmers should consider not restocking a site if it would create a ‘fire break’ and split larger management areas into two smaller areas’. • Epidemiological study data, gathered by MHS, suggests that the area surrounding Groay/Lingay is particularly pre-disposed to PD. This data also suggests that shallow, high energy sites, such as this one, are more prone to PD infection that deeper, lower energy sites. • There is evidence showing that square pens are more pre-disposed to Pancreas Disease than circles. • It is understood that it is the applicant’s intention is to sell the proposed site to… on receipt of planning permission although the applicant states that the site will be synchronised with the MHS sites in North Uist area. The …farming strategy as we understand uses farms for two years and then fallows for a full year. This is not the same as MHS and therefore it is our view that the synchronisation can only happen during the first year of this new farm. The potential risk to all other farming operations in this area were this site to be run without synchronisation would be disastrous. • The applicant states that jobs will be created as a result of this development. It is MHS’s view that the development will jeopardise far more jobs throughout the Western Isles. Poor fish health can result in catastrophic reductions in aquaculture related employment; as a result of firebreaks being compromised, and widespread disease outbreaks. The proposed development has the ability to seriously compromise the sustainability of Aquaculture throughout the Isles of Uist, Harris and Lewis. • Management areas also help to mitigate against the spread of sea-lice. The development of a new fish farm in Groay/Lingay will bridge a firebreak between management areas 5C and 5B; thereby contributing to the dispersal of sea-lice. • Sea-lice can disperse over large areas where wind and tide are conducive; however the existing firebreak is proving to be sufficient in controlling the dispersal of sea-lice between the Isles of Uist and Harris. The erosion of the firebreak will increase the likelihood of sea-lice transfer between these areas; this transfer will provide a vector for disease, and is likely to contribute to the resilience of sea-lice treatments. • The disease and sea-lice risks created by the development are of great concern to MHS, consequently the company request that the Local Authority clarify how they intend to assess the disease and sea-lice risks associated with this development. Can the applicant guarantee they will be able to synchronise production with other operators in the area. The company also requests that the applicant clarifies the status of the proposed new management area which is mentioned in Appendix 6 of the application.

7.14 Nature and Scale of Development • I object to this proposal on grounds that it is clearly experimental, indeed unrealistic, in its assumption that marine multi-culture is possible. If it proves not to be, this undermines the economic case made by the applicant. Bivalves and seaweed farmed alongside fin-fish, particularly from a non-organic enterprise, would be unlikely to be marketable in Europe, because the concentrations of chemicals and waste from the salmon cages would almost certainly breach Health & Safety regulations.

• The need for land based facilities has not been adequately addressed or finalised. A considerable amount of space is required for cumbersome items such as ropes, chain, shackles, anchors, buoys, navigational aids, cages, boat spares and storage shed etc. The applicant has not properly addressed this situation in the application. • The multi-directional currents in the Sound of Harris, will be drastically reduced if the Comhairle ever find the funding for the fixed link causeway between Harris and North Uist. This would render the site unusable in all probability, leaving The Comhairle liable to compensate the operator huge sums. • This is an industrial sized fish farm.

7.15 Cultural Heritage • There is significant historical landform feature on Lingay Island. There is a large rock formation in the shape of a crucifix that appears at high tide. It points a line North West out from Lingay towards Pabbay into the Sound which is particularly significant. It is known that Pabbay has an ancient Christian history with sites of two important chapels, and also its name literally meaning priests’ or hermit’s island. This, along with the known connection with the ancient inhabitants of Pabbay with the regular cutting of peat on Lingay (Alexander Macleod, 1770), it is highly likely that they were the people who created the crucifix that pointed towards their religious home. This is so unique and meaningful, that it is a part of the cultural heritage promotion on Lingay. This proposal will severely impact on this as it will be only 250m away and exactly blocking this connective line. This landform has very significant spiritual and cultural heritage value which has not been assessed with a site visit to determine it’s significance and the subsequent impact on it (Structure Plan4 DM1(iv)) or with regard to its historic environment and its setting (as required in SPP6 111 and 112 Historic Environment, Structure Plan4 SC9). • A site visit must take place in order that a detailed impact assessment of the full impact of the development with regard to its historic environment and its setting (as required in SPP 111 and 112) can take place. The proposed development will have a significant impact on its importance. • It is important to understand that no planning controls or conditions can prevent the impact of the fish farm on and destruction of the promotion of the natural, cultural heritage and landscape value. The impact on the crucifix rock formation will be so great as to totally block the line of site to Pabbay.

7.16 Species of conservation concern and impacts

7.16.1 Mammals – Cetaceans & Sea Mammals • Cetaceans are European protected species (listed on Annex IV of the Habitats Directive). • It is an offence to deliberately or recklessly disturb cetaceans. • The waters of the west coast of Scotland are an important habitat for cetaceans. • These areas of the central Sound of Harris are regular feeding areas for cetaceans. • Although there is not extensive data on cetacean sightings for the Sound of Harris and surrounding areas, line transect surveys for cetaceans carried out by Hebridean WDT since 2003 and public sightings data collated over the last two decades indicate that the area is a habitat for species including bottlenose dolphins, common dolphins, harbour porpoises and minke whales. • This is the only area of the Sound regularly used by Cetaceans - Risso’s dolphin and White-sided dolphin regularly, White-beaked and Common dolphin occasionally; Pilot whale regularly, Minke whale occasionally, Great Porpoise (Orca), Porpoise, Basking shark. • Cetaceans use sound to communicate, navigate, orientate and find food; they have a highly developed and sensitive sense of hearing, and as such are vulnerable to the impacts of anthropogenic noise in their environment.

• ‘Cetaceans are much more sensitive to acoustic noise and a high pitched sound that might inconvenience a seal might cause pain to a cetacean. Thus, powerful acoustic deterrents may exclude cetaceans from a large area.’ - (SARF report). • ‘Three investigations of habitat exclusion of cetaceans caused by ADDs have been reported and all have shown long-term exclusion from habitat and reduction in cetacean density at ranges extending to several kilometres’ – (SNH report).

7.16.2 Cetacean & Sea Mammal impacts • The likely use of Acoustic Deterrent Devices (ADD’s) as a predator control strategy may lead to disturbance and exclusion of cetaceans from the surrounding habitat. • ADD’s are normally found in two differing forms Acoustic Deterrent Device (ADD’s) and Acoustic Harassment Devise (AHD’s), both are known to have adverse effects on cetaceans. • The technology of ADD’s to help reduce predation by seals whilst minimising impacts on cetaceans’ does not commercially exist. We think more detail should be provided by the applicant to justify his assumptions. • The effects of such devices are subject to much debate and most of the ‘evidence’ is anecdotal from fish farm workers whilst undertaking other duties. Reactions from seals were reported as being from highly successful, to not working at all. • Sound transmission distances will be considerably greater in this exposed site than in enclosed sea lochs.

7.16.3 Otters • Otters are of European Protected Species. • Any disturbance to otters is illegal. • Otters are at a maximum population density on Lingay and Groay. • There are long-standing and significant populations of otters established and breeding on both Lingay and Groay, as well as regularly occupying the tidal island in-between Lingay and Groay. • There are two active otter holts adjacent to the development on Lingay. • Otters may be common locally but that does not mean that they are not nationally rare.

7.16.4 Otter impacts • The likely effects of daily disturbance to their holts and subsequent young (which are very much more susceptible to disturbance) has not been assessed. • As the development is adjacent to this habitat, there will be an impact on this population and this impact should have been assessed in detail. • Otters will not only suffer from habitat loss but also from the degradation of their aquatic habitat, pollution of food sources from water borne contamination absorbed by the fish and molluscs they feed on and through loss of feeding areas. • Otters would also be put in danger of injury from the gill nets and possible drowning.

7.16.5 Seals • Of the newly created modelling system the 180,000 or so Grey Seals Halichoerus grypus form around 40% of the Global population for this species which makes the Scottish populations highly important and significant. • Grey seals are an important species in their own right. Britain holds a large proportion of the world population of the species and they are one of only four species of mammal known to be native to the Western Isles. Therefore, we have a responsibility to conserve this Grey Seal colony which is a natural asset to us. • Grey Seals are sensitive to disturbance around their breeding colonies and the presence of a fish farm could cause abandonment or a decrease in size of this breeding colony.

• The fish farm will be located within extremely close proximity to and haul-out sites and traditional successful and long-established breeding colonies of both Atlantic Grey and Common Seals on Lingay and Groay. • There are very high numbers of seals annually, especially during the breeding, pupping and moulting seasons for both species. These sites are monitored by the Sea Mammal Research annually. • Haul out sites exist around both islands, with the main concentration of seals being in the sheltered areas (near the site of the fish farm) on both islands and on the tidal island in-between, which is located even closer to the fish farm. These sites are used all year round by the seals. • To allow this development next to colonies of seals will be negligent in the extreme, as the Comhairle will be creating a situation where there will be a necessity to control/kill seals that interact with the development. • The reason for my objection is that I believe that locating a fish farm in close proximity to the Grey Seal breeding colony on Groay is inappropriate. Grey Seals are known to be a pest species affecting fish farms due to their predation of salmon. As a result, fish farms often use scaring devices to deter seals and can also be issued with licenses to cull seals. This procedure seems acceptable in situations where fish farms have been sited away from areas of intense seal activity but where seals have been attracted into the vicinity of the fish farm by its presence. However, the situation of the applicant proposing to site a fish farm close to a known Grey Seal colony is unacceptable. It seems so obvious both for the benefit of the fish farm and the seals to locate fish farms away from areas of intense seal activity. • Common Seals Phoca vitulina vitulina are part of a sub-species; the European seals, it is estimated that before the population crash that the UK was home to around 40% of these seals and that Scotland is home to 90% of those found in the UK. • Common seals are known to have different sites for pupping and resting (Korax et al 1990, Thompson 1989). A protected area must include a network of sites which are used at different times of year (SNH Review 458). Therefore as this development sits within a known network it will have a significant detrimental impact on and/or destroy this network. • Common (Harbour) Seals are facing an ‘alarming decline’ as highlighted by Professor Boyd of the SMRU. The last count for Common Seals (Aug 2008) was for 67 adults within 5km of the proposed site.

7.16.6 Seal impacts • It is important for the Comhairle to realise that no planning controls or conditions can stop the significant impact that the fish farm will have on the seals. This due to the impact from the disturbance from the day to day management at the site, scaring and shooting. • The farmer has already indicated his intention to become involved in the local seal management group which will, under the Government seal shooting licensing scheme which comes into force next January, allow the shooting of seals on the basis of local population levels and not on a last resort basis for the removal of so-called rogue animals. The scheme will also allow the shooting of lactating mother seals which will result in dependant seal pups suffering a slow and painful death by starvation. This is extremely likely in this case given the close proximity of known seal breeding sites to the proposed farm. • It has also been observed that when a fin-fish farm becomes established close to a seal colony that the seals suffer from the experience, either by harassment, which includes actual physical and acoustic disturbance, shooting, entrapment and other related problems. • ‘Both grey and common seals are known to be vulnerable to the effects of disturbance during pupping season. For both species, disturbance can lead to females deserting pups and, in some cases, females may leave sites for another’ (SNH Review 458). This is clarification from SNH’s own report that seals are vulnerable to disturbance and that this can lead to them abandoning the colony site. This is coupled with SNH breaching its own 0.5km siting recommendation.

• As well as injury and deaths to the seals, there is the prospect of nursing mother seals being shot and leaving dependent pups to die of starvation. • When anti-predator nets are not deployed in spring and summer, the risk of seal damage resulting in fish escapes is very real. Anti-predator nets need to be of very small mesh and very highly tensioned to avoid entangling birds, otters and seals. If the developer does not, as proposed, deploy anti-predator nets in the spring and summer, doubtless he plans to ‘manage’ seal damage instead by shooting seals in this season, which is when heavily pregnant common seals come inshore for pupping in early summer. Shooting of seals, even a relatively small ‘quota’ under the new Marine Act licensing measures, may cause serious disturbance to breeding groups and obvious welfare problems to dependent pups of mothers who have been shot. Such shooting of pregnant or lactating common seals could prevent any recovery of this species in the Sound of Harris. • The Sound of Harris contains the Small Seal Isles a protected area including the islands of Shillay and Coppay, it is highly probable that the region of reefs and islets contained with the islands of Ensay, Killegray and Gilsay, Scaravay, Lingay and Groay are highly significant to 1; the protected site and 2; to both seals species present in the Sound of Harris. • The whole area (SOUND OF Harris) should be taken into account, but it is useful to show that even in this restricted location between the two islands of Groay and Lingay significant numbers of seals occur within a few hundred metres of the proposed salmon farm. • If the seal colonies are abandoned there is nowhere else for them to go. If they could breed on other islands in the Sound, they would already be doing so. • SNH report - ‘locations which are used for hauling out are often very specific and traditional, suggesting that there are certain factors which make them preferred’. …‘the only habitat which we know is absolutely essential for grey and common seals is suitable substrate on which to give birth to their pups’ • Lingay and Groay are used particularly because they are highly suitable sheltered haul-out and pupping habitats. It is likely that a lot of the pups are born on Lingay and Groay as these islands are already proven seal pupping habitats. Seals do not breed on Killegray, so where are these significant alternative sources of habitat? Killegray does not have suitable substrate, neither do other islands in the Sound. No assessment of this was undertaken. • The scale of the proposed development, including the number and size of the cages, food remains, fish faeces and human activity will inevitably result in a total change to the ecology of the area. • It is predicted that if the proposed salmon farm development should go ahead, the sea, tidal rocks and shore area in the vicinity of Groay and Lingay islands will no longer remain viable habitat for either common or grey seals. • The sea area where the development will be sited is presumed to be at present both a foraging area for seals and also a corridor for seals travelling to and from haul-out and pupping sites on Groay, Lingay and nearby skerries.

7.16.7 Birds - Cormorants • Seabird 2000 census found 9 colonies of cormorants in the Western Isles with Lingay holding 25% of the population. • In the census Lingay and Scaravay had 112 apparently occupied nests (AON). • This makes the Lingay cormorant colony the sixth largest colony in Scotland and of national importance requiring protection. • It is estimated that during the nesting period there may be in excess of 560 adults and juvenile birds within the vicinity of the development. • The breeding colony of cormorants is within sight of the proposed development at a distance of 300metres (2003 nest) and 450 metres (actual colony site). • The Lingay colony is the most important in the Sound of Harris having been established for more than 10 years and not moving to other islands. • Cormorant populations have increased dramatically because there are no threats from industries.

• The map in the planning application showing where the birds nest is incorrect and the date of fledging is also inaccurate. • The colony has never been at the grid reference site referred to by SNH.

7.16.8 Cormorants impacts • Cormorants have very specific site requirements for breeding including lack of disturbance, inaccessible sites with sheltered rocky outcrops. • It is wrong to assume that the cormorants are relatively tolerant to human presence. It is unlikely that the birds will habituate to disturbance and are more likely to relocate elsewhere, a scenario which is unacceptable. • The number of cormorants has decreased in fish farming locations because colonies are abandoned and RSPB warn that this is likely to happen in this case. • The impact of boat traffic will be severe both during and after construction. • If the Lingay site is abandoned or destroyed because the Comhairle has approved the application without a full impact assessment, the Comhairle will be in breach of its biodiversity duties. • It is the duty of SNH and the Comhairle to ensure that the population maintained and enhanced and that the precautionary principle is applied.

7.16.9 Birds - Sea Eagles • Sea eagles are regularly seen in the Sound and use Lingay and Groay as their hunting grounds. The noise levels and constant disturbance from the site will drive them away. The impact of this has not been addressed or assessed. • A platform nest was built in 2009 on Lingay in order to encourage sea eagles to nest. A pair of adult eagles of breeding age have been seen to show interest in the nest this year (which is recorded), and an adult has been regularly seen roosting there. There is a high likelihood that they will nest in the next year or two.

7.16.10 Birds - Other • The daily activity and disturbance will have a detrimental effect and reduce the number of a range of birds. These impacts have not been assessed or addressed. • Eider duck of which there are many in the Sound and have increased on Lingay in recent years are a predator of Mussels (which are to be grown on longlines). • Corncrakes breed on Lingay. As their breeding site is so close to the development, the daily activity and disturbance will have a detrimental effect on their attraction to and breeding success on Lingay. This has not been addressed or assessed. • There are nationally important diving birds Black and Red Throated Diver, Great Northern Diver, Slavonian Grebe that feed/ and or winter in the area precisely where the proposed site will be and in areas adjacent to it. • Waders including redshank, turnstone, ringed plover, common sandpiper and heron (significant predator of fish farms) use the foreshore of Lingay immediately adjacent to the proposed site. • Populations of guiliemot, razor bills, fulmars, puffins and terns are known to congregate in this area.

7.17 Predator interactions • Even if the farm is run to the standards required by RSPCA Freedom Foods as I understand these still allow for lethal predator control. It has been estimated that hundreds if not thousands of seals are killed every year at RSPCA endorsed salmon farms. • Anti-fouling/predator and protective netting will be confrontational and endanger animal species and have a serious impact on the bird life. • Otters would also be put in danger of injury from the gill nets and possible drowning. • Nature dictates that feeding mothers would find the closest and surest supply of food, In this case it would be the fish farm.

• Inevitably there will be heavy casualties in protected species from shooting and from entanglement in anti-predator nets. • This is not just a problem of rogue seals and the odd cormorant. Seals and cormorants are a constant and consistent presence being located in the immediate vicinity of the fish farm development at all times of the year, with higher concentrations adjacent to the fish farm during breeding periods. • There is a colony of cormorants nearby which will no doubt be attracted to the fish farm only to be trapped in the predator net as would the pre breeding populations of guiliemot, razor bills and puffins known to congregate in this area. • Even if the farm owners go to the expense of installing and maintaining the very best high strength, tensioned anti-predator nets and acoustic scarers it is likely that cormorant will become trapped and will die and seals will be excluded and scared away from their traditional habitat. • If the farm does not install and maintain the very best high strength, tensioned anti-predator nets it is extremely likely that seal attacks will occur resulting in farmed fish being released into the environment and seals being shot and killed by the fish farmers. • Seals will interact with the fish farm creating unwarranted amounts of stress. • The seals would be put in immediate danger of injury through being caught up in the tensioned nets and death through shooting. The applicant has even stated in Appendix 6 of the planning application, that that seal pups are at risk of being ensnared on fish farm equipment. There are no planning controls or fish farm control measures that can stop this impact. • ‘Fish Farm Seal Management Plan’ referred to in Appendix 6 ‘Proposed Environmental Management System’ says nothing that is not common practice at most fish farms to protect against natural predators; it is totally inadequate to safeguard the breeding population of seals as well as the integrity of the fish farm. • Siting fish farms within areas containing high concentrations of and within close proximity to predators is to invite considerable losses of fish. • Otters are predators of fish farms. • Cormorants are major predators of fish farms and are in danger from the predator nets. • No planning conditions can stop the interaction with the fish farm and the disturbance and possible death of the cormorants caught in nets. • Eider duck- are a predator of Mussels.

7.18 Siting Contrary to Industry Code of Practice, SNH and Government Guidance • The siting of the development is contrary to Scottish Government Guidance as the site is surrounded by vulnerable wildlife. • It is also Contrary to Code of Practice – Salmon Farming and predatory wildlife in that new farms should not be established close to concentrations of predator. Concerns have been expressed about the use of anti-fouling/predator and protective netting, gill netting, acoustic scarers, the possible shooting seals and the impact this will have on the species that live breed and feed in the vicinity. • The Marine Conservation Society guidelines2 state that fish farms should not be situated in areas of concentrations of predators, specifically siting seal haul out and breeding sites. The guidelines state that where fish farms are to be located at such a site, then it must be proven by the fish farm that all interactions can be controlled by NON-LETHAL means. As the fish farmer is already applying for licenses to shoot, he fails to meet the standards. • It is only after ‘good siting’ of a fish farm has taken place that every reasonable measure should be taken to exclude predators. The applicant states that he will adhere to these guidelines and codes of practice and yet he is going against the basic first principal ‘new farms should not be established close to concentrations of predators’. • Part of this biodiversity strategy includes proximity and minimum distance from known seal haul-outs to fish farm installations. SNH minimum is 500m; the latest recommendations giving by the Seals Protection Groups is two miles. In areas

such as the Sound of Harris; Marine Concern would suggest that the minimum, taking into account the local economics of the area, one mile, but this figure is subject to scientific research. • In Appendix 12, the applicant states that a recommended distance of 100m is kept from hauled out seals. However, this refers to advice given in The Scottish Marine Wildlife Operators Association Wildlife Watching Code – this is not advice given for recommended distances for the siting of industrial size fish farms and their boat operations!

7.19 Biodiversity Duty • Comhairle nan Eilean Siar has a legal duty to ‘further the conservation of biodiversity’ as stated within the Nature Conservation (Scotland) Act 2004. • This duty does not solely relate to the population of a species, but also to the conservation of habitats of those species in the area of the development. SNH’s opinion regarding the possible abandonment of colonies that breed on both Lingay and Groay would therefore be a breach of that duty as the result would be the destruction of the habitat of those species. The effect of the development could not be more significant than this, therefore under this duty this development should not be allowed. • Habitats destruction and change are major factors in loss of biodiversity and organisms and is contrary to Scottish Government National Indicator for Biodiversity. • (Structure Plan4 DM7(v)) states biodiversity and ecological interests are maintained and where possible enhanced. These have not been properly considered the Comhairle on Lingay. • There will be significant detrimental effects on the wildlife, marine environment, biodiversity, scenic value, natural and cultural heritage, landscape character, sustainability, tourism of the immediate and wider area and thus the local community. • My arrangement with the new owners of (Groay) island is a perfect example of biodiversity. From April to September, the island is left ungrazed and the existing flora grows, flowers and seeds. My sheep in the autumn benefit from grazing on a rich and wide diet as well as preparing the ground for the following season. In the summer, insects, bumblebees and butterflies, some of them rare, thrive on the flowers’ nectar and in return help these to pollinate and seed. The longer grass gives shelter to birds and mammals, in particular otters. • It is obvious that the impact of this fish farm on the existing biodiversity on both Lingay and Groay will be extremely significant. When all factors are looked at together and not in isolation i.e. in relation to both seals and cormorants: nationally significant colony sizes, highly sensitive to human disturbance, need for remoteness, rare favourable colony site habitats, close proximity to the development, colonies having direct line site to the fish farm and that both species are major predators of fish farms, coupled with the fact that Lingay is managed for conservation and was given planning permission for the sheiling for the promotion of the biodiversity, landscape and cultural heritage that will be massively impacted on/destroyed by the proposed development, a reasonable, responsible and competent person and/or authority cannot fail to conclude that the impact of the fish farm will be extremely significant and damaging and therefore planning permission should not be granted.

7.20 Impact on neighbouring development • Planning permission for the sheiling on Lingay was obtained in 2007 for the development of a business for the promotion of landscape, wildlife and cultural heritage. The Comhairle agreed this sheiling and its promotion through granting planning permission. The fish farm development is in direct conflict as this will destroy the landscape, wildlife and cultural heritage that is, and was the reason for the promotion and need for the planning permission for the sheiling in the first place. • The significance of the impact of this development on the successful conservation work that has and is carried out on Lingay has not been addressed

or assessed. The Comhairle should be protecting this prior existing and valuable resource from such an inappropriate development. • This development will destroy the integrity of the immediate area. • This is not a situation of just one person being affected at the location of the development. It involves potentially hundreds of people that may benefit in the future from the interpretation and promotion of this natural and cultural heritage resource to them, along with the resulting local tourist revenue generated from this and also the increased likelihood of return visits etc. If the Comhairle approve this development, this existing resource and its potential to increase will be destroyed. • Structure Plan4 DM7(ii) states ‘no undue harm to neighbouring uses as a result of the development’. It is obvious that the development will very severely impact on the development of tourism because it is in direct conflict with that which exists there, i.e. destruction of the integrity of the landscape value of this area of the NSA, from the point of view of Lingay. The colonies of wildlife and otters will be so significantly impacted that the possibility of promotion will be destroyed. No site visit took place in order to assess the full impact of the development on my business.

7.21 Set a precedent • If this planning application does not merit an EIA, it effectively gives the green light to similar applications to extend the current proposed development or to build new ones. • There is a concern that this development will not stop here, and that there are likely to be further developments should this initial proposal be approved. • We are particularly worried that this will be the first in a new series of salmon farms. Once the precedent is set and a salmon farm is established in the Sound of Harris, the argument will be weaker for preventing further sites and one of the few pristine stretches of coastline will be lost. • Granting this development (thereby opening the way to other potential similar developments) would endanger the possible designation of the coast and protection of the site and its immediate surrounds under the Marine and Coastal Access Act 2009. The planning authority, given its stated commitment to biodiversity and protection of the environment, should not be seen to place commercial interests above environmental issues. If permission for development is granted, and the area is designated and protected under the Marine Conservation and Coastal Access Act, the likelihood is that any planning permissions granted would be revoked, and the planning authority would have to pay compensation to the developer/applicant or successors at the expense of the planning authority. This is not a potential burden to which the resources of the planning authority should be exposed and the application should be rejected on this ground alone. • The site would be sold on to a large company and the beautiful Sound of Harris will be littered with these ugly cages.

7.22 Aquaculture Industry • The industrialisation of the sea involving fish farms is unlikely to be sustainable for the future. • I am aware that aquaculture has the potential to contribute to the local economy, but this is valid only if (1) ownership of the fish farms remains in local hands, (2) significant numbers of people are continuously employed by such activity, and (3) priority for employment on such farms is given to local people. If it is possible, I would welcome any steps by the Comhairle to include conditional clauses to all approvals for such developments to stipulate that a specified number of people on the Electoral Roll of the Western Isles are kept in continuous employment. • It is felt it would be foolhardy to add to existing problems as such developments have already been demonstrated to be ecologically unsound. • One reason why Marine Harvest goes for sea lochs and a minimum depth of 25 metres is to avoid the problems related with shallow waters and exposure. The

fjord fish farm sites in Norway that have the worst disease & worst pollution are the shallow fjords. Deep fjords have little problems. • There is much evidence that wild salmon and sea trout populations in the West of Scotland have been adversely affected, in some cases almost terminally, by aquaculture. • Some critically severe adverse effects of fish farms on salmonids have been well documented e.g. one sea trout tagged as a smolt in the River Shieldaig was found to bear 977 sea lice after only 15 days at sea, a lethal infestation. • Sea-lice concentrations in the vicinity of farm cages are carried by other fish and on currents and infect wild stocks of Atlantic Salmon and Sea Trout. Research by the West Coast Fisheries Trust found that 14–40% of these species in western Scotland were infected with potentially lethal infestations of lice (Butle 2002) and research has also revealed that sea lice from fish farms kill up to 95% of the wild juvenile salmon migrating past fish farms. • Fish escapes are regular and involve significant numbers annually and is one of the most insidious and damaging forms of pollution to occur in this country. It was estimated that around 400,000 farmed salmon escaped from Scottish fish farms in 2000 alone. • Genetically modified salmon is a non-indigenous species introduced by human activities and is now at a level that adversely affects ecosystems, in direct contention with Annex 1, (2) of the EU Directive 2008/56/EC of the European Parliament. • Escapees are often inbred, genetically inferior fish capable of competing and breeding with wild stocks, resulting in reduced fitness and survivability. • Studies have now established that the offspring of second generation hybrid salmon die within 4-5 weeks of birth. • Any new development should be immune from criticism that it is a killer of mammal and bird life, and should introduce the technology now available to keep ‘predators’ off the site, and not hire marksmen. Our seas are badly managed due to pollution and over-fishing, which is causing a serious depletion in marine birdlife and mammals. • With the ongoing massive crash in Sand-eel stocks caused by a combination of climate change and gross over-harvesting for fish meal (much of it for fertilizer and food for farmed fish!) a main food item has vanished from UK marine ecosystems and it is therefore obvious that the presence of huge numbers of caged fish will act as a magnet for these species, undoubtedly resulting in their illegal destruction by irate fish farmers. • It takes approximately four pounds of food pellets made of wild-caught fish to produce one pound of salmon flesh; to feed captive fish in this way adds to the already dangerous level of over-fishing of the seas. • Unfortunately, for the current applicant the fin fish farming industry does him no favours; even though non-lethal methods of anti-predation methods exist, shooting is normally the preferred or most regularly practiced as it is the cheapest method. Not only is the industry highly secretive about the numbers of seals shot it routinely uses phrases like; ‘last resort’, ‘rogue seal’ and ‘absolute last resort’. In reality, last resort is far from it, it is quite normal for non lethal measures to be ignored and shooting occurs. In some locations, a ‘joke’ is made of the term rogue seal and every seal is deemed to be a rogue, therefore shot. Their terminology of absolute last resort speaks for itself; if ‘last resort’ is taken literally there is no requirement for further comment; the bottom line is that the seals get shot! • Some seals may habituate to regular noise and boat movements (as Appendix 12 claims for a case involving Mediterranean monk seals), but only if the disturbance is non-injurious and non-disruptive, which appears to be rarely the case in Scotland. There appears to be no documented case in Scotland where a breeding colony of either seal species has survived such close proximity of a fish farm as this proposed case.

• I do not agree with this method of farming salmon whereby fish are bred on a massive scale; this is not only unnatural, but will also impact on many other forms of marine life in the surrounding areas of which the effects will be long lasting and irreversible. • There are few areas of the Harris coastline now which are not blighted by salmon farms. The Comhairle must take precautions to ensure that the wild fish populations of the Western Isles are not irrevocably damaged by fish farm developments. • It would seem that the long term goal of the fish farm companies is to have a fish farm in every sea loch in the Western Isles - if the planning department is not aware of the fish farm disasters in Chile perhaps it would be worth taking the time to check it out online. We live in a fragile environment and do not want to destroy this for future generations. • The Western Isles is no longer an out of the way obscure outpost. CnES and SNH are now under nation scrutiny and under the spotlight. They don’t look too good, particularly in the world of salmon and trout fishing. If fish farming is to proceed as part of our economy it can do so in sealed units, on land where the effluent can be treated before returning to the environment. No sea lice problems, reduced use of chemicals, no impact on the wildlife and with no dangers to operators. • Be brave, advise on progressing to new methods, rather than pushing through old methods which proved so disastrous in Chile (National Geographical Magazine Feb 2010, Patagonia’s Peril) which is why they (Fish Farming companies) have now come back en masse to the Western Isles. • By siting a fish farm in contentious areas, you are attracting adverse attention to the industry as a whole and putting all fish farms in a bad light. Destroy consumer approval and you destroy your market. • I understand that this current economic climate is worrying for those trying to make their businesses succeed and for those, like me, who work under the hammer of others. However, proposing a business that will further deplete our food resources and cause untold damage to our environment is detrimental to our recovery; our reputation as a haven for wildlife and having paramount respect for nature will be in tatters, and then it is goodbye to our place on the international tourism stage. • Scotland's attitude to this, and other proposals like it, should be: are we really protecting Scotland from current and future financial and environmental damage? In this case, if the plans go ahead, the answer will be: absolutely not.

7.23 Inconsistency in Biodiversity Officer response • The Comhairle Biodiversity Officer has completely gone against her own advice. The Nature Conservation (Scotland) Act 2004, gives all public bodies in Scotland a duty to ‘further the conservation of biodiversity’. • Therefore it is the Comhairle’s duty to protect wildlife, not put it in danger. With regard to the previous planning application for this site (09/00627), in the EPS report3, paragraph 6.30 she advises that ‘it is likely that the proposed development will have a negative effect on seals and otters in this area’ and confirms that ‘it will not ensure that the conservation of biodiversity is encouraged and advanced as is expected by the biodiversity duty on public bodies’. • Therefore by its own admission the Comhairle is failing in its public biodiversity duty, as well going against its own biodiversity policy statement dated 21 June 2007 where it is said that the Comhairle will ‘seek to conserve and where possible enhance local biodiversity through the implementation of our statutory functions’. This statement was not addressed in the planning report. • Even though exactly the same planning application has been submitted, the same biodiversity officer has now changed her mind. She then states that ‘I am of the view that the proposed development is unlikely to have significant effect on the following species in the Sound of Harris: the breeding cormorant population; otters; grey seals; common seals, and cetaceans’. She provides no reasoning or assessment of this U-turn in her decision. This is a failure in the duty of the Comhairle Biodiversity Officer.

7.24 Inconsistency in SNH response • SNH is a government conservation body. It has a statutory remit to protect and enhance the natural heritage, to bring a unique national perspective to natural heritage issues, to be legally responsible for identifying and protecting certain natural heritage assets of recognised national and international importance. SNH as the statutory consultees have failed to undertake the necessary comprehensive assessments to make a balanced and fair judgement in their screening response. This is against the biodiversity duty 2004 Act and the Scottish Government National Indicator for Biodiversity (“Scotland Performs” microsite). • Despite being informed that some of the information used to make their decisions on screening was incorrect and having been provided in writing with correct data/information by myself, SNH still used the incorrect information on which to base their screening decision. • SNH have stated that they support the management actions that will be taken by the fish farm. In other words they support the shooting of seals. They provide contrary conclusions in the Environment and Protective Services Committee (EPS) report3 for the initial planning application (09/00627) dated 9 February 2009, where in paragraph 6.14, bullet 1 they ‘recommend that shooting is not used as the likely high number of interactions would allow large numbers of ‘rogue’ seals to be shot’. They also support abandonment of the colony. This goes against the biodiversity duty 2004 Act. • Grey Seals: In the EPS report3, SNH state in paragraph 6.6 that ‘there is the potential for seals to be disturbed by fishfarm activity’ and that ‘situating a fish farm in this particular location so close to known concentrations of grey seals will result in inevitable damage’, and yet SNH’s subsequent response to this SAME planning application 10/00468 is that ‘the proximity of the farm may not have any impact of seal interest at the farm’. SNH’s advice is inconsistent and cannot be relied upon. How can such a major consultee be trusted? • Common Seals: In paragraph 6.8 of the report EPS report3, SNH recommend that ‘appropriate NON-lethal methods are employed’ to deal with predation from Common Seals. Yet in their consultation response for 10/00468 they address the issue by supporting lethal methods of control in saying that ‘PBR for common seals is likely to be low’. • Cetaceans: In paragraph 6.9 of the EPS report3, SNH state with regards to cetaceans that ‘when passing through this area they could be disturbed by the acoustic scarers’. Yet SNH’s later response to this SAME planning application is that ‘we do not anticipate that the proposed development will have a significant effect on the cetaceans using the adjacent area or passing through’. • Cormorant colony: SNH have been made aware in writing on several occasions that the information provided in the Seabird 2000 data that they quote and rely on is incorrect. Despite this, the data quoted in their consultation screening response still uses the incorrect data. They also state that there are also alternative breeding sites available. Again they were informed in writing that this in incorrect, however they still quote and rely on this in their evidence. Using their own logic they state that as they have alternate sites to go to in the case of abandonment, impact is unlikely. However, there are no other sites to go to (except for one which is even closer to the fish farm), therefore impact is LIKELY. SNH have made no effort to update their information and make the necessary assessment of impact. They have completely failed in their biodiversity conservation duty as a public body and the Scottish Government National Indicator for Biodiversity (‘Scotland Performs’ microsite). • Polyculture: In paragraph 6.12 of the EPS report3, SNH recognise that Paracentrous lividus is a non-native species. Initial advice for planning application 09/00627 required that as this species may have consequences for the environment, the applicant ‘should carry out monitoring to ensure that they are not displacing native species or having any other adverse environmental effect’. Yet SNH’s later response to this SAME planning application 10/00468 is that despite again acknowledging that it may have an effect on the environment,

they require NO monitoring of the effect/impact to be set up or undertaken. They provide no rationale to explain their change of reasoning. • Marine Habitats (EPA report3, paragraph 6.13): SNH do not address issues surrounding locating a fish farm in relatively shallow water enclosed by even shallower areas. This concern is not even addressed in their screening response to 10/00468. This is a failure in their duty to make any proper assessment. • It would appear that SNH have undertaken no assessment of likely impacts on any of the species mentioned above and have given no reasons for their change of opinion to actively support the development. How can such contrary evidence be relied on?

7.25 Planning procedure • If you include walkways, barges, longlines, space for feed-pipes etc the surface area threshold of 2ha is exceeded and should be described as a major development (2009 Act). • We believe that it is most important that these matters are properly considered at a Public Hearing so that there can be a full and open discussion and that all information is brought to the attention of your Members of the Comhairle. • Finally, we also understand that Mr David Bines is already developing wildlife tourism to his island of Lingay, which you have encouraged through granting him previous planning permission. Granting permission for this development would seem to be in direct conflict with that decision. • I request that in the event that the planning application is consented a condition is made that no scaring devices or culling of seals should be carried out at this site. This would at least reduce the impact of the development on the breeding colony. • These islands had been in my family for many generations until they were sold to Mr Bines and Mr Merlin. I am dismayed that no attempt was ever made by either the proposed developer or the Authorities at the time of the first application or for this one to see if the new owners or my own interests may be affected by this plan. • Given that consultees have such a huge influence on the planning process and are designated as ‘competent authorities’, how can it be shown that these consultees who are supposed to provide specialist advice, contribute effectively to a quality outcome? At no point have SNH or the Comhairle Biodiversity Officer provided rational, consistent, impartial or transparent reasoning to support their conflicting opinions. At no point have the Comhairle requested clarification of these anomalies.

7.26 Competence of the Comhairle’s Planning Service • I have to ask has anybody in your office actually read this second application. It is so obviously flawed. • The first planning consent/application was deeply flawed and to avoid embarrassment in the Court it was quashed. • A Planning Officer, I understand, should check:  the details given by the applicant for accuracy;  the site is workable for its intended purpose in all conditions and have minimal effect on existing activities;  if from the proposed site the fish farm will be able to operate with good practice principles applying to that industry;  if from the proposed site the fish farm will be able to operate within the Laws applying to that industry and with negligible environmental impact;  check if it can blend in with the surrounding. • You have failed on all these accounts. • You are relying on flawed opinions. • Are you neutral in your dealings? Why did you not give her the RSPB’s and Tara Seal Research letters of objection to help (SNH/Biodiversity) take an informed decision.

• Tell me why have you not responded to Mr Bines request to go with him to Lingay and see for yourself the exact position of the cormorant nesting site? This is a far more impacting project and somehow you don’t go to check the facts. • Are you in your position of Planning Officer furthering the conservation of biodiversity (Nature Conservation (Scotland) Act 2004) by giving selective information to Biodiversity Officer and choosing not to check with your own eyes the cormorant nesting site? • You are setting up the scenario for criminal offences to be committed yet you are happy to let a project go ahead in this full knowledge. • Lack of planning officer concern for potential consequences of allowing development to go ahead – accidents will happen; fish farm breaks up in a storm; mass escape; dolphins, porpoises and whales seals will be gone, salmonid anaemia outbreak occurs. • There are many issues regarding this and the previous (App. No. 09/00627) fin fish farm application, in this location and made by the same company which give rise to numerous concerns, both of procedural matters and those erroneous in law. The previous lack of concern shown by Local Council, Government Agencies and other Relevant Authorities is extremely worrying. I sincerely hope that the same errors will not be made during this second application.

7.27 Community Council Support • The Community Council of South Harris supports the application and the creation of sustainable employment which is vital to the future viability of the Western Isles. • The Community Council of Berneray support this application as it understands that it will bring much needed work to the area

RESPONSES TO CONSULTATION 8.1 The full terms of the comments that have been received in response to consultation can be read on file at the Development Department. The following are those that are considered to be relevant to the determination of the application: Annex E to this Report contains full copies of statutory consultee responses also.

SCOTTISH ENVIRONMENT PROTECTION AGENCY 8.2 ‘SEPA has no objection to this planning application. Please note the advice provided below’; Controlled activities Regulations (CAR) – For your information, we can advise the planning authority that a CAR Licence was granted for this development in January 2010, namely CAR/L/1040427. Please note we control the maximum biomass and discharges of licensed medicines through CAR and hence planning conditions relating to these aspects are unnecessary.’

WESTERN ISLES SALMON FISHERIES BOARD 8.3 We do not object to this planning application. We note the location of this fish farm outside of sea lochs and the developer’s commitment to running the site according to AMA principles. As per request in our scoping response, MSS and the developer have agreed that the new site will fall within MSS management area 5C, with a new sub-division of 5C being made for the site. Essentially this site will form its own management area. Despite best practice measures a new fish farm site has the potential to impact salmon and sea trout migrating from the North Uist and South Harris river systems and sea trout that feed in the area. We request that this is considered by the Comhairle when coming to their decision.

SCOTTISH GOVERNMENT – MARINE SCOTLAND 8.4 Wild salmonids: The location of the proposed site is relatively remote from any of the major Atlantic salmon and sea trout fisheries in the Western Isles, the closest being located some 8 km north of the site at Leverburgh An-t-Ob. It should be noted however that many of the burns and loch systems located closer to the site are also likely to produce numbers of sea trout and salmon.

8.5 There is evidence of an effect of lice from fish farms on sea trout, although the extent to which the fish populations are affected is not clear. It appears that the range of effect of lice is at least 14km from farm source. This range will depend on both movements of lice and trout, which are not well understood. There is no published evidence of an effect of lice on trout at a population level. However, such an effect would be expected in view of the high infestation intensities observed near farms in the second years of salmon production cycles.

8.6 The site is situated where there is likely to be good flushing and the prevailing winds and currents through the Sound of Harris would tend to drift any infective stages of sea lice that may be produced by the site, away from the coastline and river/burn mouths. The proposed site would appear to be sheltered from most directions, reducing the likelihood of weather linked damage.

8.7 The operator has indicated that they are going to run the farm adhering to the Code of Good Practice for Scottish Finfish Aquaculture (CoGP). It should be noted that adherence to CoGP may not necessarily prevent release of substantial numbers of lice from aquaculture installations. The CoGP takes no account of farm size, or number of farms in an area, in setting threshold levels for sea lice treatments. This may be appropriate when the aim is to protect the welfare of farmed fish but it will not necessarily prevent significant numbers of larval lice being shed into the environment, and posing a risk for wild fish, in the case of larger farms or management areas holding a large biomass of farmed fish. The operator should be encouraged to adhere to, and try to improve on, the standards set out in the Code of Good Practice in relation to wild salmonid populations.

8.8 If the operators of this site adhere to the management practices and protocols they outline in this application and maintain very low lice levels, the risks to the wild salmonid populations will be minimized. With regard to wild salmonids, we believe that there would be no benefit in requesting an environmental impact assessment.

8.9 Fish Health: Site Location - There are currently no sites registered with Marine Scotland Science within 1000m of the proposed new site (map attached but not reproduced here). Farming in such an exposed location presents challenges with regard to stock security and access to the site. Although surrounded on three sides by small islands the site is situated in the middle of exposed, tidal waters. The application acknowledges that access to the site could present a problem but states this can be overcome with the remote technologies that are proposed for use on the site, details of which have been provided. This information in conjunction with the equipment attestations provided deems the location of the site satisfactory as far as can reasonably be foreseen with regard to the exposed nature of the site.

8.10 Fish Health: Stocking - From the information given in the application, the operation of the sites will be at an acceptable stocking density level of below 22kg/m3, given a minimum net depth of 8m. The applicant proposes the culture of secondary species (molluscs, echinoderms and seaweed) on site within the salmon farming area. Whilst the idea of culturing secondary species such as those described alongside fish production is positive in principle by possibly reducing environmental impact, it does present a potential increase to risk of disease transmission. Shellfish can act as carriers for some infectious diseases and although other species such as sea urchins and seaweed are not known to be susceptible, holding other species in such close proximity presents an unquantifiable risk in terms of disease transmission not only from the cultured species themselves but any epifauna associated with their production. However, the applicant has considered the risks associated with co- habitation and plans to reduce the risks of disease transmission by ensuring: . A simultaneous fallow period is followed for salmon and all secondary species farmed on site. . No movements of any of the secondary species off site to any other fish/shellfish site will be made at any time. . Any movements of molluscs onto site will be from certified disease free sources.

These concessions should help to reduce the risk of disease transmission on to and off of the site therefore reducing the risks associated with co-habitation.

8.11 Fish Health: Husbandry - The details provided on the method and frequency of removing mortalities and the disposal route is satisfactory as far as can reasonably be foreseen. We recommend the applicant has provisions or contingency plans in place to allow for removal and disposal of large volumes of fish during a mass mortality event.

8.12 Fish Health: Sea Lice - The sea lice treatment chemicals proposed for use on site are satisfactory as are the methods for their administration. The non treatment based strategies proposed for managing sea lice appear satisfactory as far as can reasonably be foreseen as the site will stock a single year class of salmon and observe a minimum 6 week fallow period. Synchronous stocking, fallowing and treatments with all operators within area 5c is recommended.

8.13 Fish Health - Containment – Strategies and equipment proposed for use to minimise predator interactions are satisfactory. The contingency plan for dealing with escape events and strategies for containment are also deemed satisfactory as far as can reasonably be foreseen. The site does appear to be in an exposed location, however, satisfactory attestations for the equipment intended for use on site have been provided by the manufacturers of nets, cages and moorings. Operations and records on site with regard to sea lice control and containment, must meet the requirements of the Aquaculture and Fisheries (Scotland) Act 2007, The Fish Farming Businesses (Record Keeping) (Scotland) Order 2008 and ‘A Code of Good Practice for Scottish Finfish Aquaculture’. Compliance with this will be inspected during routine visits.

8.14 Environment: The environmental information submitted in support of this application covers all the areas we are concerned with from an environmental perspective. • Benthic impact modelling appears to have been adequately undertaken and shows that for both round and square cages, organic loading to the seabed will be at low intensity with impacts over a relatively small area. • Sea lice chemo-therapeutant modelling for both the round and square cages, indicates that sufficient quantities of Cypermethrin and Deltamethrin could be used to effectively treat sea lice without breaching EQS. • Nutrient modelling indicates that levels of nutrient enhancement in the Sound of Harris arising from discharges at this site will not cause us concern.

8.15 Summary - The Screening and Scoping and Planning applications arrived with sufficient supporting environmental information to waive the requirement for formal EIA. Based on the information reviewed, the proposed development at Groay-Lingay should not result in unacceptable environmental impact and no further information is required to reach this conclusion. Overall, Marine Scotland Science has no objections to the development proceeding. In addition, it is recommended that the applicant has provisions or contingency plans in place to allow for removal and disposal of large volumes of fish during a mass mortality event, and it is recommended that management agreements are entered into with all other operators sharing the same area. We would be happy to supply further information with regard to the potential impact of shellfish production once you have provided information on the likely tonnage to be held at the site.

8.16 Shellfish - The information provided by the applicant regarding the Shellfish bio- mass and impacts, appears to be a sensible and pragmatic assessment. Taking this into consideration, our opinion is that there will be no significant impact from the scale of the proposed shellfish part of the development.

8.17 Additional Comments were obtained from Marine Science Scotland in relation to Marine Harvest Scotland’s representations on Management areas and pancreatic disease as follows:

8.18 Management Areas - The position of the site falls within management area 5c and as such will have an impact on or be impacted upon by sites within the E North Uist management area as currently defined in Marine Scotland management area maps available on the Marine Scotland website (http://www.scotland.gov.uk/Topics/marine/Fish- Shellfish/FHI/managementagreement/maps). It is therefore recommended that management agreements are entered into with all other operators sharing the same area. Management areas should hold a single year class of stock and should follow synchronous fallowing patterns.

8.19 The establishment and operation of the proposed new fish farm at Groay, Lingay will extend management area 5c, as currently defined in Marine Scotland management area maps. Please see attached map which shows a projection of how the zone will extend if the proposed site was active. Although 5c has extended, a firebreak still remains between the E North Uist management area (5c) and the SE Lewis & E Harris management area (5b).

8.20 Management area maps are formed on overlapping circles with a radius of 7.258km (or 3.629km in Shetland) around active sea water sites. Therefore, the Marine Harvest site at Loch Rodel in South Harris is not included in the current version of the management area maps as it is inactive and has been since 2005. It should also be noted that the activation of the Marine Harvest site at Loch Rodel would remove the current firebreak between management areas 5b and 5c and join these management areas together anyway, even without the existence of the Groay-Lingay site.

8.21 Marine Scotland Science is aware of the limitations of the management area maps for use in controlling sea lice, currently a gap of at least two tidal excursions between each distinct management area. However, A Code of Good Practice for Scottish Finfish Aquaculture section 3.5.1.1 allows for operators to redefine management areas and develop management plans for these areas should the operators of any management area be aware of any documented evidence or experience that shows the risks to farmed and wild fish health within the area are materially increased by operating to the management area as currently defined.

8.22 Pancreas Disease - Marine Harvest (Scotland) Ltd may have anecdotal evidence to suggest that the Groay, Lingay area is particularly pre-disposed to Pancreas Disease and that the pen type also has an impact on this. However, we’re unaware of any published data that shows an increased risk of Pancreas Disease in different holding facilities or this area.

8.23 We would agree that shallow, high energy sites are more prone to disease as the stock is being reared in more stressful conditions and increased stress can make the fish more prone to disease. However, as the applicant states in his response, the management and husbandry of the fish are the most significant factors in determining the impact of any viral challenge.

SCOTTISH GOVERNMENT – HISTORIC SCOTLAND 8.24 ‘Having checked the content of the application against our records, we can confirm that there are none of the above types of site (scheduled monuments and their settings, category A listed buildings and their settings, gardens and designed landscapes appearing in the Inventory, and designated wreck sites (Protection of Wrecks Act 1973)) in the vicinity of the proposed development. In light of this, we consider that the proposed development as described is unlikely to have a significant impact on any nationally important cultural heritage features.’

COMHAIRLE ARCHAEOLOGIST 8.25 ‘Thank you for your consulting the Archaeology Service on the impact of the Lingay fish farm on the Historic Environment. I have checked the details and have the following comments to make: Any interventions, ie housing, wind turbines, fish farms should always be appropriate and respect heritage values. These values or characteristics are outlined in the Scottish Historic Environment Policy (SHEP) as intrinsic; contextual and associative and are what makes a significant place. These values can also be applied for sites of more regional/local significance. The cruciform feature on Lingay is a natural feature augmented. This feature is not significant enough when applying these heritage values to warrant refusal on archaeological grounds. The landscape/seascape historic character has the ability to accommodate change, especially when the change can be reversed. While I understand the consent is permanent the fish cages themselves are unlikely to be permanent.’

ROYAL YACHTING ASSOCIATION (SCOTLAND) 8.26 ‘There was no response from this consultee at the time of report preparation.’ However, in pre-application consultation by the applicant, the RYA confirmed in writing to the applicant that they had no objection. (See attachments to Appendix 11 of the application.)

NORTHERN LIGHTHOUSE BOARD 8.27 ‘We recommend that this site should be marked by means of a lit yellow pole, flashing group four yellow every twelve seconds, (Fl(4) Y 12s) and fitted with a yellow multiplication cross topmark. The pole should be positioned at the most Northerly corner of the group of cages. The pole should be at least 75mm in diameter and not less than two metres in height. The light should be installed on the top of the pole; the visible range of the light should be two nautical miles. The multiplication cross should measure a minimum of 75cm in length by 15cm in width. The feed barge on the site is required to exhibit an all round fixed white light, which should be exhibited from a point at least 1 metre above any obstruction. The nominal range of the light should be 2 nautical miles. The use of trip ropes and mooring buoys to indicate the seabed extremity anchors should be prohibited on the Northerly and Westerly side of the site but at the most South-westerly corner we recommend the anchors are marked with 50cm high visibility orange buoys to give indication to any vessels using the safe anchorage where these anchors are placed.’

COMHAIRLE HARBOUR MASTER 8.28 ‘No objection - Recommend site to be clearly marked and lit in accordance with requirements of Northern Lighthouse Board. Due proximity of anchorage this marking must be in place as soon as any sub surface works commence and remain in place during any fallow period unless ground tackle removed completely’.

COMHAIRLE ECONOMIC DEVELOPMENT SECTION 8.29 ‘From an economic development perspective I have no issues with this application.’

SCOTTISH NATURAL HERITAGE 8.30 NSA - The proposed development is within the South Lewis, Harris and North Uist National Scenic Area (NSA). There are no other designated sites present within the vicinity of the proposed development, although there are species of local importance adjacent to the location.

8.31 Appraisal of the Likely Impacts of the Proposal on Natural Heritage Interests:

8.32 Landscape and Scenic Impacts The proposed development is within the South Lewis, Harris and North Uist NSA. The applicant has produced a Landscape and Visual Impact Assessment (LVIA) which provides useful additional information. In relation to the guidance ‘Marine Aquaculture and the Landscape: the Siting and Design of Marine Aquaculture

Developments in the Landscape’ (SNH 2000) - we consider that the siting and design of the proposal does not reflect the scale and subtleties of the shape and scale of the coastline and will intrude on an area of open water between Lingay and Groay. This will have local impacts but due to the limited visibility of the development we do not consider that this will have a significant adverse impact on the integrity of the National Scenic Area.

Seals - Disturbance 8.33 The grey seal population in the Western Isles is stable, producing between 11,000 and 13,000 pups annually since 1992. Grey seals are present within the Sound of Harris area all year and do pup on the islands adjacent to the proposed development. From the last two counts in 2005 and 2008 there were: 158 and 83 pups respectively on Groay; and 86 and 64 pups on Lingay. The proposed location of the development is between these two islands and will be within 500m of the colonies so there is potential for the seals to be disturbed by the fishfarm activity. It is our view that the grey seals are likely to continue using Lingay and Groay to pup, but if they do abandon these areas then there are alternative islands for them to use within the Sound of Harris area. The nearest islands designated as a Site of Special Scientific Interest (SSSI) for grey seals are Coppay and Shillay – part of the Small Seal Islands SSSI. It is our view that the proposed development will not have an adverse effect on this SSSI.

8.34 The common seal population is declining, both nationally and locally, and numbers in the Western Isles had reduced to 1,815 animals in the 2008 survey. Common seals are present within the Sound of Harris throughout the year. They use the numerous rocks and skerries dotted throughout the area as haulouts. When pupping they gather in lower densities than grey seals and are more mobile as the pups are able to swim shortly after birth. Recent counts during the harbour seal moult in August 2010 confirm 67 common seals within 5km of the proposed development. If they choose to avoid the rocks and skerries adjacent to the fish farm once it is operational, then there are numerous alternatives for them to use but like the grey seals they may become accustomed to the activity. There are no designated sites for common seals in the Sound of Harris.

Seals – Predator Control 8.35 The management actions proposed by the applicant are very thorough and we note that this includes the intention to undertake an ongoing management plan using a contractor/employee to address predator issues. If all the management actions specified are undertaken, this should be sufficient to avoid significant impacts on the seals.

8.36 Applications for shooting common and grey seals under a new licensing procedure detailed in Part 6 of the Marine (Scotland) Act 2010 were due in November 2010 for any seal shooting from 1 February 2011. Applicants were required to provide details of non lethal methods of seal predation prevention they employ and will report quarterly on the number of seals shot. Applications will be considered against the Potential Biological Removal (PBR) – the number of animals that can be removed without an effect on the Western Isles population. This figure will be calculated annually by the Seal Mammal Research Unit (SMRU).

Cetaceans 8.37 Cetaceans (dolphins and whales) are European Protected Species (EPS) and have been reported using the area of deeper water towards the Minch, adjacent to the proposed fishfarm. We note that the applicant intends to monitor the effect on cetaceans and only intends to use triggered Acoustic Deterrent Devices (ADDs) when there is an issue with seal predation. Based on previous cetacean monitoring carried out in the Sound of Mull in relation to a fish farm’s use of ADDs, we do not anticipate that the proposed development will have a significant effect on the cetaceans using the adjacent area or passing through.

Cormorants 8.38 From the seabird 2000 data, there was a colony of 112 apparently occupied nests on Lingay. The proposed site will be visible as the birds leave and return to the colony, but so long as activity is confined to the development site and any vessels access the site responsibly then there is a high probability that the birds will habituate to the presence of the fish farm. The existence of alternative breeding sites and the ability to move colony location means that if there is any disturbance, it is unlikely to have an effect on the Sound of Harris population of breeding cormorants.

Otters 8.39 Otters are a European Protected Species (EPS) and are present throughout the Western Isles. Observations from other operational fish farms show that otters continue to use the area. We are of the opinion that the otters on Groay and Lingay are unlikely to be significantly disturbed by the activity of the fish farm.

Polyculture Issues 8.40 The introduction of a sea urchin species (Paracentrotus lividus) in large numbers into an area where they are not present naturally could result in a significant settlement of spat, particularly if suitable habitats are present. There is a risk that existing communities could be altered by competition with, or predation by, this sea urchin. However, we have consulted a specialist on this sea urchin at the Scottish Association of Marine Science (SAMS) and they advised that it is unlikely to breed in the location proposed.

Marine habitats 8.41 The hydrographic report states that the site is well flushed with residual currents heading SSE which should alleviate concerns of accumulation but we would defer to the modelling experts – SEPA and Marine Scotland to comment on this aspect. We are not aware of the presence of any species or habitats of conservation importance present within the vicinity of the proposed site and none are recorded from the underwater video survey.

[SNH] Conclusion 8.42 We are of the opinion that the development will not have a significant adverse impact on the integrity of the NSA. It is our view that there is a risk of localised disturbance to some species – grey seals, common seals, otters and cormorants but that the risks are low and not of national importance. We advise that most animals will become accustomed to the presence of the fish farm but if they do abandon Lingay or Groay there are alternative islands and skerries for them to use. Therefore we do not anticipate that there will be an impact on the Sound of Harris populations of these species, nor loss of biodiversity.

SNH Position 8.43 Having considered the impact of this development on the NSA and on other local natural heritage interests as requested by you, we do not object to this proposal.

SNH Further Advice – Cormorant (advice in response to third party representations on effect on Cormorant population and alleged inconsistency in SNH response on the species).

8.44 Representations cited that SNH continue to rely on Seabird 2000 data which is incorrect and that SNH’s opinion is predicated on a misunderstanding that alternative breeding sites are available. SNH has advised as follows: • “Whilst it is accepted that the grid reference given in the JNCC Seabird 2000 database may not be totally accurate the accuracy of the grid reference is not critical as the initial advice was clear that there were two alternating nests sites which have been used on Lingay, one at the south and one at the north. The actual Seabird 2000 count when birds were at the south end was carried out by myself [AS] and DA....” • “The southern nest site is c600-650m from the actual proposed cage locations, whilst depending on the layout (two in the original application) 300-350m from the northern nest site based on the grid references provided by the objectors.”

• “This does not alter my view that the nest sites particularly the southern one are partly screened; and that the birds may be ‘restricted’ to the southern end if disturbed, which is their current favoured locality. Again I explained in my original advice that there were alternate islands in the Sound of Harris that are and have been used by breeding cormorants. I will explain in more detail below.” 8.45 Representations contested SNH’s view that the cormorant colony would habituate to the presence of the fish farm. SNH advised further as follows:

• The initial advice was not predicated only on visual and noise disturbance. It considered the all potential impacts on the cormorants. • Potential disturbance to and potential for abandonment of the colony on Lingay. • The wider implications of any lethal and non lethal scaring that may be used given that conflict with aquaculture from cormorant predation is a well known issue. • It is well established that cormorants are attracted to fish farms primarily attracted by smaller fish that feed on detritus under the cages, or escaped small fish (Birds of Scotland) but this does not mean that birds will feed there all the time in preference to other feeding areas within the Sound. • There are fish farms which have been present in the south-east Sound of Harris, and south east Harris within the feeding range of the Lingay colony (some as close as c7km) without evidence of substantial deleterious impacts. If cormorants from the colony were preferentially feeding at existing fish farms and either being ‘persecuted’ or entangled in predator nests to any great extent there should be evidence of a decline in the Sound of Harris breeding cormorant population. For example declines in the Caithness breeding population were noted to involve a high adult mortality that was occurring in the birds wintering grounds (largely rivers and coasts in north- eastern Scotland) where food shortages and/or high levels of shooting were likely causes (Budworth et al 2000 & Seabird 2000). To date there is no evidence of such an effect in the Sound of Harris. • Similarly at the wider Western Isles level despite widespread fish farming activity the overall breeding population has stayed approximately stable between the three national seabird censuses with no indication of population level impacts on cormorants. For example in Loch Roag in west Lewis which has extensive aquaculture sites the counts of breeding cormorants there have shown a stable breeding population of 21-26 nests between the surveys carried out there up to and including the Seabird 2000 survey. • Additionally, in terms of direct persecution the colony by the freshwater Loch an Tomain in North Uist provides evidence that cormorants will not necessarily abandon a breeding site long term. This colony had been in existence since at least the 1940s, but nests and eggs were destroyed in 1982 and it was abandoned in 1983 (Counsell 1983), however despite this 38 nests were noted in 1984 and the colony still exists and holding an average of 50 nests from 1997-2006 (Outer Hebrides Bird Reports). Further the large increase in cormorant populations on the continent of Europe and the impact of culls there from fishery interests has been studied through population modelling and it has shown that levels of culling need to be very high in a healthy population before they will have serious impacts on the population (Fredriksen et al 2001). The above examples are also backed up by studies across the USA in relation to the related Double-crested cormorant and a range of fisheries and aquaculture, where deliberate human intervention at colonies by a wide range of means (including shooting) has often not resulted in permanent abandonment. (Wire et al 2001)

• This shows that normal scaring/anti-predator methods used by existing fish farms have not had and are unlikely to have significant impacts on the Western Isles or Sound of Harris cormorant population, and that even direct disruption of breeding (which would be illegal) may not cause birds to permanently desert a colony site. Additionally, any lethal control would have to be licensed and any application would be assessed on its merits with refusal or conditions applied as necessary. In terms of habituation it is clear that the Lingay cormorants do possess a level of habituation to both people and boat traffic. The Sound is regularly used in the breeding season by small fishing and pleasure boats, and the colony is close to the Sound of Harris ferry route (birds routinely fly back and forth across this route). When carrying out the Seabird 2000 survey we were in a small boat and floating close to the colony with no sign of anxiety behaviour from the birds many of which had young. • Similarly one of the objectors DB, has submitted a photo taken from at least near if not within the colony to back up his visibility argument, again the birds do not appear anxious or distressed by the presence of a person. Fish farm staff will be operating at a distance of several hundred metres from the either colony location. Given that cormorants regularly feed close to existing fish farms are a recognised predator at fish farms they are clearly showing some habituation to the daily operations of these fish farms. The applicants are proposing access by a route which is likely to minimise boat traffic near the breeding site and this should provide suitable mitigation as regards any potential disturbance from additional activity. • Beveridge (2001) in his review of aquaculture and wildlife interactions states that anti- predator nets if properly maintained are effective and that even with sound scaring predatory birds often habituate. Again this shows that cormorants in general and those in the Sound of Harris do have a level of habituation to people, boat traffic and noise. It is also clear that the applicants are planning to mitigate increased boat traffic, that combined with the partly screened location of the southern colony site and it’s separation distance from the cages means that disturbance to the cormorants from the operation of the fish farm will be minimised. As stated above I consider abandonment unlikely, with potentially the birds being restricted to the colony site at the southern end of the island the most likely situation. 8.46 Representations contested SNH’s view that there are alternative cormorant breeding sites in the area. SNH advised as follows: • During the last national seabird census (Seabird 2000 which ran from 1998-2002) 445 apparently occupied nests were recorded at nine colonies in the Western Isles. This is a largely stable population compared to the two previous surveys given there was a known undercount in the mid 1980s survey with key colonies like the Monach Islands (194 nests in 1985 – there was a known error in the reporting of this colony hence 13 nests were all that appeared in the survey results) and Causamul (47 nests in 1986) and Fiaray & Flodday (both around Barra & Vatersay which would probably have held a total of c50-80 nests based on other counts) missed. Again given the widespread development of fish farming within the Western Isles during the period between the Seabirds Colony Register survey and Seabird 2000 survey it is apparent that there is no evidence of a major change in the breeding cormorant population. • The Sound of Harris has long been known as an important area for breeding cormorants within the Western Isles. At least 6 islands and one mainland location on the Sound are known to have been or be used as breeding sites by cormorants although not all at the same time. These locations are Toe Head on the south west Harris mainland; Coppay; Shillay; Little Shillay; Spuir (between Boreray and Pabbay); Scaravay and Lingay.(Harvie-Brown, Smith 1969, JNCC Seabird Colony Register Database) Numbers of nests at these sites have changed over long periods of years with in the late 1960s-at least mid 1980s the main colony was on Shillay with up to 100 nests being recorded and 62 nests during the Seabird Colony Register survey in the mid 1980s. Apart from 80-100 nests on neighbouring Little Shillay in 1992, the main colony has shifted east with Lingay and Scaravay becoming increasingly used since the mid 1980s, with only 2 nests on Shillay during the Seabird 2000 census.

• Overall from the 1960s to the Seabird 2000 census numbers of cormorants breeding in the Sound of Harris has been pretty stable (see Table 1 below) and that whilst there has been the 647% increase at Lingay noted by the objectors there has been a corresponding large decrease on Shillay indicating that birds have moved. Such shifts in breeding locations by cormorants is known from other locations in Scotland, particularly the Firth of Forth where the breeding birds have moved between very widely separate islands over periods of time sometimes annually (Southeast Scotland Atlas & Fife Atlas). Within the Western Isles the colonies on the Monach Islands and Causamul west of North Uist also show evidence of birds switching between islands. Cormorants in Scotland are founding new colony sites with a large increase on the Ayrshire coast of the Firth of Clyde during the last 10-15 years when previously they had been faithful to one particular site. • Cormorants prefer to nest off slabby blocky, often low, cliffs or rock shelfs and there are other islands, in addition to those already used, not previously used by cormorants within the Sound of Harris which are potentially suitable. Given the alternative locations used previously and the fact that the population has been largely stable it is almost certainly some other factor such as food availability not availability of suitable nest sites that is limiting the size of the population. The reasons for shifts are unclear and in the Sound of Harris, Shillay is known to owned and managed with conservation in mind so it is possible that the Lingay colony may move at some point regardless of whether the fish farm is present. • One of the objectors in their initial objection to the proposal stated that the island held a colony of 75 pairs (AM in objection letter to CNES in January 2010). This figure is undated but if it is recent (which was how I read it) then it indicates that the colony may currently be below the 1% of UK breeding population threshold of national importance. The UK population is stated as 9018 pairs (Baker et al 2006). Table 1. Sound of Harris Cormorant Colonies during the 3 national Seabird censuses Colony Island Operation Seafarer Seabird Colony Seabird 2000 (late 1960s) Register (mid (1998-2002) 1980s)

Shillay 100 62 2 Coppay 0 17 0 Lingay/Scaravay 0 15 112 Reference texts all quoted in Bibliography

SNH Further Advice on Bird species (in response to third party representations on effect on other bird species).

8.47 I can confirm that we do not anticipate that the species mentioned will be affected by the development. • Sea eagles do use other areas close to fish farms and yacht anchorages as roost sites so there is no reason to anticipate that they will stop doing so in response to the proposed fish farm. They do not breed on Lingay at present. • Corncrakes are unlikely to be affected by the development - elsewhere they use areas close to activity (houses, roads, active crofts, office buildings) and the critical factor for breeding success is the availability of long vegetation throughout the season. • Waders likewise do not appear to be disturbed by human activities - but could be affected by non-native predators and any activity that destroys their nests repeatedly. • Sea birds (I presume gannets, eider ducks and long tailed ducks) and divers are present in the Sound of Harris and feed in the seas throughout the area. If there is localised disturbance there are sufficient feeding areas throughout the remainder of the Sound of Harris for them to use. • Eider ducks breed on coasts throughout the Sound and may be present on Lingay and Groay - they do use other areas close to human activity eg areas

close to harbours and slipways so it is unlikely that they would be disturbed by the activities of the fish farm but they may predate the mussel lines.

SNH Further Advice on Seals, Cetaceans and ADD’s (in response to third party representations on effect on Seals, Cetaceans and their habitat). 8.48 In response to specific points made in representations, SNH were requested to provided advice to aid the Planning authority in its assessment and response to representations. The issues on which clarification was sought are set out at the start of each paragraph below (preceded in each case by the word Rep) with the advice of SNH following in bulleted italics.

8.49 (Rep) - If the farm goes ahead, seals are likely to be excluded from the habitat (for foraging, as a corridor to travel to haul outs and as pupping sites). • Disturbance is likely to be localised and temporary - seals may be disturbed away from the immediate area around the fish farm, particularly if they are in the water when the ADDs are triggered. However, there is a large area of alternative habitat for them to use elsewhere within the Sound of Harris both for feeding and for haulouts. • Grey seals may abandon their existing pupping sites along the coasts of Lingay and Groay in response to the proposed fishfarm. However, they are already accustomed to a degree of existing boat activity from creel boats, the ferry and other passing boats so they may habituate to the fish farm activity. ADDs do not make a loud noise above water so their use is unlikely to disturb those seals ashore. • If the grey seals do abandon these sites then there are numerous other islands they could use within the Sound of Harris. 8.50 (Rep) Grey Seals “congregate at traditional breeding colonies, returning to the same place in the same colony in successive years. Many females even return to the same colony at which they were born”. SNH booklet ‘Seals’ by Callan Duck, pg 14. Breeding Grey seals tend to use the same breeding locations generation after generation. • Grey seals do tend to use the same colony and many do return to the same colony where they were born but not all – new colonies are formed and examples of this are the Monach Isles, Lingay and Groay.

8.51 (Rep) Where are these significant alternative sources of habitat? • For common seals there are numerous other rocks, sgeirs and coasts throughout the Sound of Harris that they could use to haul out. • For grey seals there are other islands that they could colonise for breeding colonies eg Ensay, Killigray, Pabbay and many other small islands. There are numerous rocks, sgeirs and coasts where they could haul out. [A series of four maps were appended to the above advice demonstrating the extent and position of these rocks, sgeirs and small islands] 8.52 (Rep) Not all islands and landforms are suitable breeding sites. SNH are aware that ‘the only habitat which we know is absolutely essential for grey and common seals is suitable substrate on which to give birth to their pups’ and ‘locations which are used for hauling out are often very specific and traditional, suggesting that there are certain factors which make them preferred’. (SNH Review). Killegray does not have suitable substrate, neither do other islands in the Sound. • Grey seals colonies are found on a broad range of island habitats and sizes at present within the Western Isles. The largest breeding grey seal colony is on the Monach Isles. There, the seals haul out onto low machair, sand dunes and sandy beaches - similar habitat to that found on both Ensay and Killigray. Seals already gather in large numbers on Pabbay to moult and part of the island has similar habitat to the Monachs.

• By contrast, some very rocky islands are also used by grey seals - Gaisgeir, Hasgeir, Copaigh and Shillay (Monachs). Some are mostly bare rock whereas others are covered in various forms of maritime grassland like Shillay (Sound of Harris). Grazing does not appear to disturb the seals unduly as there are a reasonably high number of sheep on both the Monachs and North Rona. • Given the above, there are a number of different island types within the Sound of Harris that could provide suitable habitat for grey seals to pup. • There is a popular common seal haulout on Berneray, along the coast within Loch a Bhàigh, the local harbour. Most other common seals haulouts within the Sound of Harris are on rocky sgeirs which are numerous in the area.

8.53 (Rep) Seals do not breed on Killegray or Ensay as there is no fresh water on these islands - an essential requirement for seals to paddle. • Fresh water is not required by seals at either haul outs or breeding sites but where pools are available within a seal colony the adjacent seals do wallow in them. An example of a breeding colony where they do not access freshwater is the Monach Isles (the largest colony in Britain) – there is a loch but it is on the opposite end of the island to the seals and they do not use this part of the island.

8.54 (Rep) It is not known at present whether the decline a c. 3% annual decline in harbour seal counts in the Outer Hebrides relates to recent ecological changes in the Sound of Harris or to fisheries by-catch or direct persecution of these animals locally. • The reasons for the decline is not known, SMRU are carrying out various studies to determine the reason for the national decline. Various factors are being considered including the interaction between grey and common seals.

8.55 (Rep) Heavily pregnant common seals come inshore for pupping in early summer. If the developer does not, as proposed, deploy anti-predator nets in the spring and summer, seal interactions will increase and result in seals being shot. Q:Can you comment on this aspect of the Management Plan? • It doesn’t necessarily follow that a farm near a haulout site will have a severe seal problem. It appears that good husbandry (well tensioned netting and removing salmon from the dead basket, installing seal blinds, installing triggered ADDs) can prevent seal problems. We wouldn’t want to see anti predator nets installed as a matter of course. • Having looked at the declines in common seals at set distances from haulouts (10km 5km and 1km) the final part of the Executive Summary of the ADD report states that “declines in common seal haulouts are not obviously affected by proximity to salmon farm sites”

8.56 (Rep) SNH recommend that anti-predation measures should not be implemented within 500m from a known haul-out. The Scottish Executive 1999 Advise Note ‘Marine and Fish Farming and the Environment’ is quoted in the SARF Working Paper 1 as stating that the separation distance for marine cage farms from vulnerable wildlife is 0.8km. • SNH used 500m as a rule of thumb to define the boundary of a seal SAC from the beach where the seals hauled out generally. We have also used a further 500m from outside the boundary of a Seal SAC to provide a buffer of 1km to prevent any disturbance of the animals on the haulout. The distances used are for guidance – where farms are outwith the separation distance there is less likely to be disturbance and within the distance more chance of disturbance. • For this case the cages and ADDs will be closer to the breeding colony than recommended and therefore there is likely to be some disturbance, particularly when the ADD is triggered. In response the grey seals may relocate to another colony either an existing one or a new site, or they may become habituated to the noise of the ADDs and continue with their existing colony.

8.57 (Rep) Seals are being enticed to be shot – they will take fish from cages – as the cages are being placed in front of them. • Seals attacking fish farms appears to be learned behaviour by a small number of individuals. Once learned it is a difficult habit to break which is why fish farms use deterrents and good husbandry to try and prevent seals from learning the behaviour. Shooting is successful if the perpetrator can be identified because it removes the problem ultimately. However, the numbers shot will be limited by the licence issued.

8.58 (Rep) Haul out sites exist around both islands, with the main concentration of seals being in the sheltered areas (near the site of the fish farm) on both islands and on the tidal island in-between, which is located even closer to the fish farm. These sites are used all year round by the seals. • Numbers of both seals vary throughout the year. Common seal numbers vary at haul-outs considerably, from day to day, and are also absent for periods. Grey seal numbers are at their highest when they gather to breed and moult, for the rest of the year most disperse away from the breeding sites.

8.59 (Rep) These sites are monitored by the Sea Mammal Research annually (indicative of their importance). • SMRU monitor grey seal numbers annually at breeding sites from October to December, at the larger sites they fly over taking aerial photos on two dates. On the smaller sites eg Lingay and Groay they usually carry out one flight. • Since the decline in common seals, SMRU have aimed to survey the whole of Scotland but have not always managed it due to equipment breakdown or bad weather. The survey is carried out during the harbour seal moult so the results provide a snapshot of where the common and grey seals are on a single date in August.

8.60 (Rep) ADDs will help reduce predation by seals but may impact on cetaceans. Marine concern states that ADD technology that has less impact on cetaceans does not exist. • There are no ADDs that will only scare seals but each make works differently. SNH does not recommend any particular model but does recommend that triggered devices are preferable to continuous ones.

8.61 (Rep) A SARF report on ADDs (carried out by Sea Mammal Research Unit) was published on 20 December 2010. Q. Does its findings add anything to previous advice. • In the Sound of Mull porpoises were initially disturbed from an area where ADDs were introduced but were less disturbed from other areas where ADDs had been in use for several years. The report suggests that a possible explanation could be that individual animals are motivated to stay in good quality habitats regardless of the noise or perhaps they become habituated to it. It also found that porpoises returned to areas almost immediately after ADDs were switched off. The report concludes that habitat (seabed slope and depth) was a significant predictor of porpoise distribution but that ADD received level was not - confirming that the ADDs do not significantly disturb porpoises in the Sound of Mull.

8.62 (Rep) HWDT (Mull) acknowledge that there is not extensive data on cetacean sightings for the Sound of Harris but advise that line transect surveys carried out by them since 2003 and public sightings over the last decade ‘indicate that the area is a habitat for species including bottlenose dolphins, common dolphins, harbour porpoises, and minkie whales’ Q. Does SNH hold data and can you enlarge on the impact of using triggered ADD’s on a site at Groay Lingay. • SNH does not hold this data. We do see the species mentioned whilst carrying out other work and do get occasional reports from the public. The species mentioned above are reported/seen from around the coastline throughout the Western Isles and the use of ADDs at all the other existing fishfarms does not appear to be significantly disturbing these cetaceans from using the area. • This fits with the findings of the above report on ADDs in the Sound of Mull and why we are of the opinion that the use of triggered ADDS at Groay Lingay is unlikely to cause significant long term disturbance to the cetaceans using the area of deeper water adjacent to the fishfarm site or those travelling along the coastline.

COMHAIRLE BIODIVERSITY OFFICER 8.63 I refer to the above planning application and have reviewed the details of the application, in particular Appendix 12 – Wildlife Interactions and the additional information supplied on Seals and Cormorants, and advice included within Scottish Natural Heritage’s response.

8.64 Cormorant is identified in the Western Isles Local Biodiversity Action Plan (LBAP) Audit (2002) as a species of conservation concern. However the species is not a UKBAP priority species (2007 published list) nor is it identified in the Scottish Biodiversity List (published in 2005). The purpose of the Scottish Biodiversity List is to help public bodies carry out their Biodiversity Duty by identifying the species and habitats which are the highest priority for biodiversity conservation in Scotland.

8.65 The Western Isles LBAP has to date focused on 8 species and habitats for which action plans were published in two phases. Phase 1 comprises Action Plans for Great Yellow Bumblebee, Native Woodland and Saline Lagoons. Phase 2 comprises Action Plans for Dunlin, Corncrake, Corn Bunting, Irish Lady’s Tresses Orchid and Cereal Fields and Margins. As such the Western Isles LBAP has no specific actions at present for grey seals, common seals, otters and cormorants. In addition there is no intention to produce further action plans at this stage.

8.66 In conclusion I concur with SNH’s response, as experts in this field, that there is unlikely to be a significant effect on the population of the following species - grey seals, common seals, otters and cormorants. The Comhairle holds no additional information to inform its view.

VIEWS OF APPLICANT 9.1 The full terms of the views of the applicant can be read on file at the Development Department. However, they can be summarised as follows:

9.2 ‘The location and containment strategies for the proposed Groay-Lingay aquaculture site were assessed and developed during the initial planning application process. This process entailed discussion with gear manufacturers, other fish farming operators, local fishermen and staff within the Sea Mammal Research Unit and the Scottish Government Fish Health Inspectorate. At the time of submitting the second planning application there were no relevant substantive changes in my knowledge of the characteristics of the proposed site.’

9.3 ‘Though not thought a material planning consideration the following is given to set the context of the development and the developer. It is assumed that planning consents are granted in relation to the site and not the business or people involved, though feasibility of success of development, on account of the proposed plan, should likely be considered as material.’

9.4 ‘The development has been under consideration for a number of years. I have worked in a professional capacity in the development and management of many aspects of the marine resources and environment in the Western Isles since 1998 and before that in other UK and international contexts. The Groay-Lingay development was conceived to bring a new type of aquaculture (integrated multi- trophic aquaculture) to the Western Isles and to focus its servicing from North Uist and Berneray (my home). The process was hoped to be a positive process which would create new year-round work opportunities to the area, as well as associated projects in food processing, marine hatchery and scientific support. I have a long term plan to see my local area develop into a successful aquaculture area, which challenges the traditional models and generates a buzz for the young-at-heart, to attract new energies and to retain those who wish to work with the sea.’

9.5 ‘To this effect, since March 2010, a working agreement with funders and other businesses has been in place to actively develop the Groay-Lingay site, as first step in the plan. These working arrangements have enabled the allocation of funds and commitment of resources (growing of juvenile salmon), in preparation for the development and have entailed further assessment of the suitability of the site for the type of aquaculture proposed.’ 9.6 ‘Primary members of the business partnership have 20+ years of growing salmon in the Scottish context. I personally, through my consultancy role in the Western Isles have in the last 6 years been involved directly with 27 new/modification/optimisation applications for aquaculture developments on behalf of varied clients. In addition I have had further significant roles in co-ordinating the optimisation of aquaculture development through such initiatives as the Western Isles Site Optimisation Plan and the Scottish Government funded Loch Roag Site Optimisation Plan. I therefore regard my expertise in aquaculture, and in particular the aspect of site selection, as being reasonably well developed. I’d always suggest experience is a better indication of ability than qualifications but in terms of qualifications for the task, I have as honours degree in Naval Architecture and Ocean Engineering (Univ. Glasgow), a Master of Science in Marine Resource Development and Protection (Heriot Watt) and a PhD covering both oceanographic and biological aspects of integrated aquaculture (University of Aberdeen).’

9.7 ‘The business grouping, I have pulled together since the first application, are poised to make this Groay-Lingay aquaculture site happen. This is not a process which is taken lightly and the significant funds and resources which have been allocated to the project thus far, if nothing else, are a testament to the opportunity for success (in both economic and environmental forms) which this development presents.’

9.8 ‘I don’t feel I can offer anything more substantive than was submitted in the planning applications on the ‘location and containment’ issue or indeed many other ‘issues’ which have been raised by objectors.’

9.9 ‘I am continuing to progress with this application on the working assumption that the site has a very high chance of aquaculture success and that the location with all of is attributes, has now been assessed by way of the EIA screening process (now on two occasions) by the Scottish statutory consultees (SEPA, SNH, MSS, WIDSFB, NLB, CnES), and found to be a development which is unlikely to present significant environmental impacts.’

9.10 ‘I appreciate there are many with views opposing this development. I am however working on the assumption that my own experience, that of my associates and the supportive views of the Scottish statutory regulators for aquaculture, are sufficient endorsements for this development to progress with a good chance of success and with insignificant environmental impacts.’

9.11 ‘See attached land and seascape visual assessment.’

9.12 ‘Further to the request for more information on the Cormorants, see attached.’

9.13 ‘Please find attached my responses as separate files: Shellfish & Biomass impacts; Additions to Seal Management Plan; Additions to Farm plans – Section AA expanded;’

APPLICANT RESPONSE TO MARINE HARVEST REPRESENTATIONS 9.14 ‘Further to the modelling of the proposed development by Marine Science Scotland, the proposed development at Groay-Lingay does not bridge the management areas 5b and 5c’

9.15 ‘Within the scientific literature, epidemiology studies have not indicated that fish reared in square pens are more susceptible to PD than those in circles, and in those studies where the pen type has been used as a risk factor, it has not emerged as significant (Kristoffersen et al., 2009, Rodger & Mitchell, 2007).Kristoffersen, A.B., Viljugrein, H., Kongtorp, R.T., Brun, E. Jansen, P.A., 2009, Risk factors for pancreas disease (PD) outbreaks in farmed Atlantic salmon and rainbow trout in Norway during 2003–2007. Preventive Veterinary Medicine 90 (2009) 127–136. Rodger, H. and Mitchell, S., 2007, Epidemiological observations of pancreas disease of farmed Atlantic salmon, Salmo salar L., in Ireland. Journal of Fish Diseases 2007, 30, 157– 167’

9.16 ‘The applicant is working with investors who have experience in salmon aquaculture and it is his aim to retain control of the site for at least the medium term. The grouping formed to run the site will comprise a number of shareholders and responsibilities for the aquaculture activities will be allocated as per the relative strengths and levels of investment of the respective players.’

9.17 ‘As planning consents are not time constrained it would be ill advised to dictate stocking timing within consents, as operators change with time and also change production strategies.’

9.18 ‘The proposed Sound of Harris FMA was a suggestion accompanying the applicant’s response to Healthier Fish Working Group consultation, April 2010. The Sound of Harris FMA has been subsequently discussed with Head of Scottish Government Aquaculture Policy and those involved in delineating the new local management areas (SSPO), through revision of the Code of Good Practice maps. Data on residual flows through the Sound of Harris, NW to SE was submitted with the maps. The status of the area is as yet unknown, though as the evidence supporting the claim for the Sound of Harris management area is more convincing than the arguments supporting separation between many other areas in the CoGP, logic would infer the area to be suitable of demarcation.’

DECISIONS AFFECTING THE SITE 10.1 There are no extant planning permissions or Crown Estates Development consents relating to this site.

10.2 In February 2010, following a negative EIA Screening Opinion issued by the Comhairle, an application for planning permission (for the same development as is being considered by this Report) was granted by the Comhairle. On 26 April the Comhairle was served with a complex petition, submitted to the Court of Session on behalf of Mr David Bines (the owner of Lingay Island), for Judicial Review of that planning permission. Following consideration of its terms, it was conceded that adequate reasons had not been provided for the original negative Screening Opinion and on that legal point alone the Court issued an interlocutor quashing the planning permission. The Court’s interlocutor was effective from 14 October 2010.

10.3 The Comhairle also granted an undertaking to Mr Bines to the effect that in considering the current planning application 10/004468/FFPA it will have to take into account, so far as relevant and applicable, (a) its obligations under EU Law in respect of European Protected Species and (b) its duty to further the conservation of biodiversity under and in terms of Section 1 of the Nature Conservation (Scotland) Act 2004. These matters are addressed in the Report below.

10.4 It should be noted that the Court of Session did not consider any of the material planning issues which were relevant to the decision to grant planning permission in February 2010 and the fact that the Comhairle agreed to settle the petition being upheld on the ground that the EIA screening exercise was deficient has no bearing on the fact that the current planning application should be considered on its own merits and in the context of the Comhairle’s responsibilities as Planning Authority. Equally, the fact that there has been a previous grant of planning permission, quashed by the Court of Session, must not influence members in their determination of the current application, which must be considered on its own merits, as discussed further below.

10.5 As noted at Section 6 above, the proposed development exceeds the thresholds set out in the EIA Regulations and therefore required to be screened to establish its likelihood of a significant effect on the environment. 10.6 The Comhairle carried out an EIA screening assessment and on 5 October 2010, having considered the characteristics, location and potential impact of the development proposal as detailed in the application and supporting documentation, and following consultation with advisory bodies, Comhairle nan Eilean Siar as Planning Authority adopted the Opinion that the development proposal as described in the application was unlikely to have a significant effect on the environment and therefore in these circumstances an Environmental Statement was not required to accompany the Planning Application. A copy of the Screening Opinion is appended at Annex C. 10.7 On the 13 December 2010, Solicitors acting on behalf of the owner of Lingay Island served a further Petition for Judicial Review and Interlocutor of the Court on the Comhairle in respect of the negative EIA Screening Opinion. The Court of Session allocated four days in mid February 2011 for the hearing of the Petition.

10.8 On the 22 December 2010, the Comhairle requested that Scottish Ministers issue a Screening Direction in terms of the EIA Regulations as an EIA Screening Opinion is an opinion and not determinative.

10.9 Scottish Ministers advised that they were unlikely to be in a position to issue a Direction to allow consideration of its findings prior to the Court dates allocated in February and therefore a request was submitted to the Court on behalf of the Petitioner to discharge the first hearing fixed for 15 -18 February 2011 and to ‘sist’ the Petition pending the outcome of the Comhairle’s request to the Scottish Ministers to grant a Screening Direction under Regulation 4 of the EIA (Scotland) Regulations 1999.

10.10 On the 2 March 2011, Scottish Ministers issued a Direction that the development for which planning permission is sought is not EIA development for the purposes of the 1999 Regulations. A copy of the Screening Direction of the Scottish Ministers is appended at Annex D.

THE DEVELOPMENT PLAN 11.1 Section 25 of the Town and Country Planning (Scotland) Act 1997 says, ‘Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise’. Attention is therefore drawn initially to any relevant policies or other elements of the Development Plan. This is then followed by comment on any other material considerations before a conclusion is reached.

11.2 Western Isles Structure Plan (adopted December 2003)

PLAN REF RELEVANT TERMS IMPLICATIONS FOR THIS DEVELOPMENT SC9 Sustainable Management The general objective of sustainable Practices development has been defined as “Development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

Policy LP/ED4 of the Local Plan supports the sustainable development of aquaculture.

In conjunction with its Community The use of resources specific to the Planning partners, the Comhairle proposed site is the use of an area will encourage management of marine water. The policies cited practices and activities that meet below are responded to in terms of sustainability objectives in the use the impacts arising from the siting of of land, water and other natural the farm in marine waters, and resources. consider benthic impacts, benthic bio-diversity, water column impacts, bio-diversity, and landscape amongst other considerations.

The proposed development’s use of natural resources is considered to be sustainable (based on the assessments below) and therefore meets the aspirations of this Policy.

It will further seek to sustain and The sustainability and enhancement enhance the quality of the unique of the quality of the landscapes, landscapes, natural environment natural environment and and biodiversity of the Western biodiversity of the Outer Hebrides is Isles for the enjoyment and considered below in terms of education of its residents and Development Plan policy and in the visitors. overall assessment of the Planning Application, in light of consultation responses from statutory consultees and the Planning Authorities other statutory duties.

Account should be taken of the Account has been taken of relevant Water Framework Directive and European Directives. any future European Directives and national guidance.

DM1 Location of Development

Development proposals that can The Western Isles Structure Plan be absorbed without harming the was approved in December 2003 local social, economic or prior to Marine Fish Farming environmental characteristics of coming under the control and the Sustainable Community Area management of the land use in which they are located, will planning system. generally be supported. Proposals serving social or community The criteria stated in this Policy are interests should have regard to the therefore focused on the location of needs of the users of such land (as opposed to marine) based facilities and be located near a development. public transport node/ junction/ interchange and/or within safe and easy walking or cycling distance of their catchment population…..

RM6 Coastal Development Proposals for development will be In common with Structure Plan encouraged on developed Policy DM1, this policy pre-dates coastline or within existing Marine Fish Farming entering what settlements. was historically a terrestrial or ‘Land’ use based planning system.

Proposals within areas of This policy deals with land based undeveloped coast where no development. township settlement exists, and along isolated coastline, will be The same can be said for Scottish assessed against the criteria set Planning Policy (para 102), in that out in DM1. the presumption against development in areas of isolated coast in the SPP, relates primarily to land based development in coastal locations.

Structure Plan Policy DM1 has been commented on above.

RM9 National Natural Heritage Designations

The Comhairle will only permit development which would affect a designated area of national importance, such as Sites of Special Scientific Interest and National Scenic Areas where;

i) the objectives of the The Sound of Harris forms part of designation and the overall the South Lewis, Harris and North integrity of the area will not be Uist, National Scenic Area (NSA), compromised; the second largest of 40 NSA’s in or Scotland. The application site falls within part of the South Lewis, ii) any significant adverse effects on Harris and North Uist NSA. The the qualities for which the area NSA Citation states ‘The scatter of has been designated are clearly islands in the Sound of Harris acts out-weighed by social or as a visual link between South economic benefits of national Harris and North Uist, as well as importance creating a seascape of scenic

beauty’.

In 2010, SNH published ‘the Special qualities’ of the NSA and regard has been had to these in the assessment of the proposed development.

The SNH Landscape Character Assessment 2004 categorises the landscape of the Groay/Lingay island group as ‘Rocky Moorland’.

The application advises that the site was designed having regard to SNH guidance on the siting of marine fish-farms in the landscape.

A Landscape/Seascape visual impact assessment was submitted to aid assessment of representations.

The proposed farm sits in an area of the marine environment between the islands of Groay and Lingay which are c. 5km distant from the mainland shore of Harris. The proposed site secures a level of screening and shelter from the island of Gilsay to its north east, various reefs and skerries and to a lesser extent Scaravay to the south. The proposed farm is low-lying but may be visible in the distance when viewed from the north west, will be visible from the east from boats in the Minch, on part of the ferry route from Leverburgh to Berneray and to a lesser extent on the other navigable route through the Sound. Otherwise it will be either partly obscured by landform and/or sited against the backdrop of the land- form of nearby islands and rocks and skerries thereby minimising its landscape and visual impact.

SNH advises that the siting and design of the proposal does not reflect the scale and subtleties of the shape and scale of the coastline and will intrude on an area of open water between Lingay and Groay.

However, SNH advises that while this will have localised impact, due to the limited visibility of the development they do not consider that this will have a significant

adverse impact on the integrity of the National Scenic Area.

A site visit was carried out by two planning officers in conditions of good light over a high to low tide cycle. The proposed site was viewed from the route of the passenger ferry (at passenger deck level), from the deck of a charter craft and from the villages of Strond and Borrisdale.

Section 263A of the 1997 Act imposes a requirement on planning authorities to ensure “special attention is paid to the desirability of safeguarding or enhancing [the NSA’s] character or appearance”.

Paragraphs 12.28 – 12.46 below, set out the planning service’s detailed consideration of the proposed development with regard to the special qualities of the NSA.

The Comhairle’s planning service has considered and had reviewed the details of the application, carried out a site visit, sought advice from SNH and had regard to the ‘special qualities’ of the NSA, in carrying out the assessment against this policy.

Landscape: the low lying nature of the structure and the absorption capacity of the landscape, is such that while the farm siting does not wholly reflect the scale and subtleties of the shape and scale of the coastline and will intrude on an area of open water, the proposal will introduce change but that change is localised.

Visual impact: The distance from the mainland shore, transient nature of experience when viewed from the ferry, other boats or vessels, and the small number and infrequency of receptors on the surrounding islands is such that the visual impact is assessed overall to be low.

The Comahirle’s planning service has therefore concluded that the objectives of designation and the overall integrity of the NSA will not be compromised by the proposed

development.

SNH’s advice is that while the proposal will introduce change, that change is localised; there is visual impact but due to its nature it is not significant. The Comhairle is entitled to give due weight to the advice of SNH.

The Comhairle’s planning service has given due consideration to the special qualities of the NSA in carrying out this assessment and in doing so has concluded that the character and appearance of the NSA is safeguarded.

The development is therefore assessed to accord with this policy. RM11 Habitats and Species The Comhairle will not normally In this case neither the application grant consent for developments on site nor its near environs contain land or water that would have a habitat that has been designated significant adverse effects upon under the provisions emanating habitats or species listed under the from the EC Habitats or Wild Birds EC Habitats Directive*, Directive. the EC Wild Birds Directive** or the Wildlife and Countryside Act However there are species listed on 1981 (as amended)***. both Schedule II and Schedule IV of the Habitats Directive in and around The Comhairle will encourage the the application site. appropriate management and enhancement of features of the The key biodiversity considerations landscape which are of major are therefore: importance for wild flora and • Otter and Cetaceans (European fauna. Protected Species),

In the event of a proposed • Grey and Common Seals (Annex development having an adverse II species) but not within a impact on breeding or resting designated SAC and places used by these species, it should only proceed if: • Various seabirds including i) action must be to preserve public Cormorant, protected under the health or safety, or for other Wildlife and Countryside Act imperative reasons of overriding 1981 and the EC Wild Birds public interest including those of a Directive. social or economic nature; and ii) there is no satisfactory Under EIA Regulations, the alternative; and proposal being Schedule II iii) there will be no adverse development was ‘screened’ impacts on the species as a whole. against the Schedule III criteria. Both statutory and non-statutory * Annex 1, 2 & 4 **Annex 1 consultees provided advice, and a ***Schedules 1, 5 and 8 screening assessment was carried out firstly by the Comhairle and on request for a Screening Direction by Scottish Ministers.

The EIA Screening Direction of

Scottish Ministers concluded that the development ‘would not be likely to have significant effects on the environment by virtue of factors such as its nature, size or location.

SNH has been consulted and has carried out an appraisal of the likely impacts on habitats and species.

SNH has advised that there is a risk of localised disturbance to some species: Otter and Cetaceans(EPS); Grey and common seals (Annex II) species and Cormorant (wild bird) but that in each case the risks are unlikely to be significant. SNH advises that it is their view that seals, otters and cormorants are likely to habituate and become accustomed to the presence of the fish farm but if they do abandon Lingay or Groay there are alternative islands and skerries for them to use. Therefore SNH do not anticipate that there will be an impact on the Sound of Harris populations of these species, nor loss of biodiversity.

The Comhairle is entitled to give due weight to the advice of SNH. The development is assessed to accord with this policy. RM15 Scheduled Ancient Monuments and other Scheduled sites. The Comhairle will support Both Historic Scotland and the proposals that seek to protect, Comhairle’s Archaeologist have enhance and interpret Scheduled been consulted on the application. Ancient Monuments and other Historic Scotland advises that the archaeological sites. Development proposed development has no proposals affecting nationally impact on any scheduled important remains (whether monuments. scheduled or not) and their settings will normally not be permitted. The Comhairle’s Archaeologist has Where development is likely to advised that the cruciform affect an archaeological ‘archaeological feature’ identified by monument, site or possible the owner of Lingay is a ‘natural remains: feature augmented’ and is not such i) early discussion with that it would lead to a development control officers and recommendation for refusal on the regional archaeologist is historic environment grounds. encouraged;….

ED7 Marine and Freshwater Aquaculture Development In conjunction with interested Western Isles Structure Plan Policy parties, the Comhairle will prepare ED7 (December 2003) pre-dates a strategy to enable the fish farming coming under the land sustainable development of based planning system (2007)

aquaculture in the Western Isles. In control. The ‘Interim Scheme’ is no line with the policies of this Plan, longer in operation. consideration will be given to the following: Local Plan Policy(LPP) ED4 i) location of sites suitable for adopted June 2008 is the more development; recent policy on Marine Aquaculture ii) design of associated facilities; Development, and supersedes this iii) biodiversity landscape and other policy (ED7). parts of the natural heritage; iv) access and servicing LPP ED4 incorporates the criteria considerations; stated in this earlier policy, together v) appropriate measures to deal with additional criteria and the with the issues of pollution, disease response to it can be found below. and navigational considerations; vi) appropriate management, monitoring and site restoration arrangements. Until such time as marine fish farm planning powers are confirmed, the development of marine aquaculture will proceed in accordance with the Interim Scheme, taking account of the Scottish Executive’s Locational Guidelines (2003). The Comhairle will recommend to the Crown Estates Commissioners that they include conditions in any lease that they grant to meet the above criteria

11.3 Western Isles Local Plan (adopted June 2008) PLAN REF RELEVANT TERMS IMPLICATIONS FOR THIS CASE LP/ED4 Aquaculture and Marine Planning Powers In assessing development proposals the following considerations will be taken into account: • location The Comhairle does not have a specific strategic framework plan for aquaculture to identify preferred locations for fish farms and therefore the Development Plan comprising the Structure Plan and Local Plan provide the basis against which planning applications for marine fish farms are assessed.

Regard is had to material planning considerations which include Scottish Planning Policy.

The Scottish Government – Marine Directorate produce “Locational Guidelines” based on existing levels of nutrient loading and associated benthic impact from finfish developments. These guidelines therefore focus on sea-

lochs where there are existing fin- fish farms.

Historically, fish farming in the Western Isles was concentrated in the inner sea lochs. However, in recent years, industry consolidation and new farming practices has resulted in farms of a larger scale located in sites in outer sea lochs or in more isolated coastal locations benefitting from the shelter of an island or island groups.

The Groay/Lingay site is outwith a sea-loch and the area is therefore not categorised under the Scottish Government’s locational guidelines. However the fact that the site is outwith the areas for which Locational Guidelines are produced does not preclude the location for development.

The Scottish Government – Marine Directorate publish ‘Management Areas’. These areas are designed to help avoid and minimise the impact of Infectious Salmon Anaemia (ISA). Farms within the same Management Area are recommended to follow a synchronised stocking, fallowing and medicine treatment regime.

The application site (in common with three existing fish farms (Vaccasay, Grotay and Grey Horse Channel) sited in the south east of the Sound of Harris) (1) falls outwith any category area defined in the Locational Guidance for the authorisation of marine fish farms in Scottish Water and (2) falls within the Marine Scotland defined Management Area 5c (East North Uist).

Groay-Lingay site would fall within an extended Management Area 5C. The development would create an extension of the current 5C area to its north, by addition of a circle of radius 7.26 km. MSS has confirmed in response to representations that a separation, or fire-break, between zone 5b (East Harris) and 5c (North Uist) would however still be maintained.

The applicant has advised that in practice, the MSS management areas have generally been subdivided for localised management per the Code of Good Practice (CoGP) for Scottish Finfish Aquaculture. The separate areas offer some localised protection over stocking timing, sea-lice treatments etc within a 1-3 km radius area (or loch system) and relative exclusivity of uses of the shore facilities within defined areas, preventing disease transfer by boats, gear and personnel.

In terms of flushing of waste and consenting of medicine treatments the applicant has submitted modelling for the finfish and details on shellfish waste and dispersion which has been considered by the Scottish Government in its EIA Screening Direction, the Planning Authority during both the EIA screening exercise and the planning application assessment and by SEPA in assessing a CAR licence which has been granted for the site. The Comhairle’s planning service and SEPA are satisfied so far as can reasonably be expected, on the basis of modelling, that the proposed development will not lead to unacceptable nutrient enhancement of the water or benthic impacts on the seabed though inputs (e.g. medicines and feed) and outputs (e.g. faecal waste).

The advice of Marine Scotland Science and the District Salmon Fisheries Board (DSFB) has been sought in relation to the impacts on wild salmonids. While there is a potential for lice from the proposed farm to have an effect on sea-trout living and feeding in coastal waters it is considered by the DSFB that the proposed site being remote from any of the main wild fishery systems and in an area of high flushing, is unlikely to pose a significant impact on either migrating Atlantic salmon or sea- trout populations.

The site is remote from housing

and therefore visual impact or any noise from automated feeding equipment or boats will not have an adverse effect on any residential amenity.

The site does not conflict with marine user groups in terms of local fishing interests, sailing, navigation or recognised moorings.

SNH has been consulted and has advised that the scale, location and design of the proposed development are such that it will not have a significant negative effect on the landscape character and visual amenity of the area and will not have an effect on the integrity of the NSA. (Refer to Policy RM9 above).

SNH has been consulted and confirm that they do not anticipate impact on the Sound of Harris populations of key species nor loss of biodiversity – See SNH advice at Paragraph 8.42, response to Policy RM11 above and Paragraphs 12.12-12.27 and 12.47-12.113 and 13.104 – 13.136 below.

It is therefore concluded that in terms of planning policy considerations the location of the proposed development is acceptable.

The application identifies the proposed shore bases and therefore no new shore facilities are required to support the present application. The proposed main and secondary shore-bases exist and have existing marine related developments ashore.

• design of installations and Cage steelwork will be light grey, associated facilities; galvanised steel. Cage floats and mooring cushion floats will be dark grey.

The feed barge will be light grey in colour and its height out of the water is 6m. When fully loaded with feed, the barge will sit at approximately 4.2m in height above water.

Cage ‘walkways’ will sit

approximately 0.5 m from water surface and hand rails will lie 1.4m above sea-level. A 10m deep net is suspended from hand-rail height and is therefore 8.6m deep in the water. On each cage corner a heavy steel post 2 m above deck will be used to suspend top nets, which will quickly fall to around 1.5m height from cage ‘walkways’.

Shellfish floats will be dark grey with green blue rope between at water surface and droppers to 8m below.

The cage group and barge will require Navigation lighting in the interests of navigation safety. However, the Harbour Master confirms that all the buoys and other navigation aids in the Sound of Harris are lit and therefore, when viewed in the context of the Sound of Harris environment as a whole, the navigation warning light at the proposed farm will have no greater impact than the existing navigation lighting on buoyed and charted navigation routes. At the 2 nautical mile range stated its impact is minimal, if at all, at the point of the nearest settlement on mainland Harris.

• Biodiversity, landscape and Biodiversity, landscape and other other natural heritage features; natural features are addressed in SNH advice at Paragraph 8.42, the response to Structure Plan Policies RM9 and RM11 above and commented on in more detail in Sections 12.8 – 12.113 and 13.52 – 13.61 and 13.104 – 13.136 below.

• access and servicing The site is to be serviced from an considerations; existing shore-base at the old ferry pier at Otternish or the existing harbour facilities at Berneray, North Uist. No new facilities are proposed or detailed in support of the current application.

The applicant has advised of three navigable routes to the site. Some express concern that the site would not be accessible in adverse weather conditions. The application acknowledges that access to the site could present a

problem but states this can be overcome with the remote technologies that are proposed for use on the site, details of which have been provided. Marine Scotland Science has advised that this information in conjunction with the equipment attestations provided deems the location of the site satisfactory as far as can reasonably be foreseen with regard to the exposed nature of the site. It is considered that access and servicing considerations have been properly taken into account in the design of the fish farm and that no unacceptable planning considerations arise in terms of this aspect of the policy.

• appropriate measures to deal The Comhairle’s planning service with the issues of pollution, has reviewed the information disease and submitted by the applicant, (Appendices 3, 4, 5 and 6), taken the advice of SEPA and MSS and concluded that there are no significant concerns on pollution grounds to either the benthic environment or water column. SEPA has granted a CAR Licence authorising chemical treatments and discharges for the development which validates the information submitted in support of the application. Further comment is made on this issue within Paragraphs 13.24 – 13.51.

Marine Scotland has advised that the chemicals to be used on site are adequate to treat the bio-mass of fish within an acceptable time frame to manage sea lice, and in this regard the management of sea-lice is deemed satisfactory as far as can reasonably be foreseen.

Management areas (related to separation of farms to control the spread of disease in particular ISA) are discussed above. The farm does not bridge the management area firebreak between East Harris and Lewis and North Uist Management areas.

• navigational considerations; The Comhairle’s Harbour Master appropriate operational and the NLB advise that the cage management, monitoring and group should be marked by site restoration arrangements; navigation lighting. The charted

anchorage next to Groay and the route into it is kept clear. A Section 34 Coast Protection consent has already been granted confirming that navigation issues have been adequately addressed. Operational management arrangements are addressed through the applicants Proposed Environmental Management System which requires to be in place before the business can become operational. Monitoring of compliance with the terms of the planning consent is carried out through the Comhairle’s planning enforcement function while other regulators primarily SEPA and MSS carry out monitoring in terms of their consenting/licensing regimes (See Paragraph 6.9). It is proposed that site restoration be covered by condition.

• the incremental or cumulative There are three existing fish farms impact of the proposal; in the wider area known as the Sound of Harris namely Vaccasay, Grotay and Grey Horse Channel. These sea farms all lie to the south of Cope’s Passage, are serviced from a shorebase at Cheesebay, North Uist and fall within the same Natural Heritage designation and Landscape Character type ‘Rocky Moorland’ as the application site.

These existing sites are set against a backdrop of low lying islands of broadly similar landform and topography to those which are sited around the application site.

The sites to the south of the sound are 4-5km south south-west of the site and the seascape between is interspersed with rocks and skerries. The new feed barge at Grey Horse Channel and large vessels working at the site from time to time are visible from Lingay in conditions of good light. However, the distance and nature of the landscape and sea-scape is such that it is considered that there is no adverse cumulative visual impact arising from the development.

In terms of flushing of waste the planning authority is satisfied that

based on modelling submitted by the applicant and SEPA’s endorsement (in the form of a CAR licence) and advice from MSS that the proposed farm will not lead to unacceptable nutrient enhancement or adverse benthic impacts. There are no near neighbouring farms that would result in a cumulative impact in discharges.

Given the nature of the development, the existing fish farms referred to above and the landscape/seascape of the surrounding Sound of Harris, there are not considered to be any significant incremental impacts.

• the impact of development The site is remote from housing upon communities, tourism and and therefore visual impact and areas used for recreational any noise from automated feeding purposes. equipment or boats will not have any cumulative or adverse effect on any residential community.

In 2009 research was carried out on behalf of the Scottish Aquaculture Research Forum on the impact of fish farming on tourism. The Western Isles were one of three case studies with the findings being that the tourism industry as a whole was not adversely impacted upon by the visual impact or presence of fish farms.

The Sound of Harris is a large seascape interspersed with numerous islands and skerries offering one of only two navigable routes through the Western Isles from the Little Minch to the Atlantic. The area is used by fishing boats, pleasure and some commercial craft. The Sound is also dived by recreational scuba divers and by some commercial scallop divers. In the summer months in particular the area will be frequented by small groups of residents and visitors who wish to experience the landscape and wildlife in the Sound on local boat trips or independently in small boats or canoes.

It is considered that the development of the proposed farm

occupying a relatively small area of marine water by comparison to the area of the Sound as a whole is unlikely to have a significant or lasting adverse impact on the recreational uses as a whole.

OTHER PLANNING CONSIDERATIONS - SCOTTISH PLANNING POLICY (SPP)

12.1 Scottish Planning Policy (SPP), published 4 February 2010, is a statement of Scottish Government policy on land use planning. Scottish Planning Policy is a material planning consideration.

12.2 SPP states that the purpose of planning is to ‘guide the future development and use of land. Planning is about where development should happen, where it should not and how it interacts with its surroundings. This involves promoting and facilitating development while protecting and enhancing the natural and built environment... The planning system has a critical balancing role to play when competing interests emerge in the consideration of future development. Planning issues by their very nature will often bring competing interests into opposition and disagreement and the resolution of those issues will inevitably disappoint some parties. The planning system cannot satisfy all interests all of the time. It should, however, enable speedy decision making in ways which are transparent and demonstrably fair’.

12.3 SPP also states that: ‘The planning system operates in the long term public interest. It does not exist to protect the interests of one person or business against the activities of another.’ In distinguishing between public and private interests, the basic question is whether the proposal would unacceptably affect the amenity and existing use of land, which ought to be protected in the public interest, not whether owners or occupiers of neighbouring land would experience financial or other loss from a particular development. It also reinforces that conditions imposed on the grant of planning permission can enable development proposals to proceed where it would otherwise have been necessary to withhold planning permission.

12.4 Further SPP extracts are cited below and considered together with the relevant details of the application and the advice of consultees. The considerations are then discussed to consider the issues raised.

12.5 Where representations on the same topics have been submitted these are discussed further in Section 13 of the Report.

SPP - REGULATORY CONTROLS PERTAINING TO FISH FARMING 12.6 Regulatory Controls [para 108] - In order to clarify the roles of the different regulators and the industry the Scottish planning policy guidance advises that ‘There are a number of regulatory controls covering fish farming in addition to planning. The planning system should not duplicate other control regimes such as controlled activities regulation licences from SEPA or fish health, sea lice and containment regulation by Marine Scotland. Planning authorities and applicants should engage with other regulators to improve understanding of relevant requirements. Voluntary Codes of Good Practice have been produced by fish farming stakeholders which address a range of issues outwith planning control such as cage and equipment design, security, management and operational practices. These codes provide the basis for certification of standards and practices put forward in support of planning applications for fish farms.

12.7 The Regulatory Controls other than planning are set out at Section 6.9 above. The planning authority while not seeking to duplicate other regulatory regimes has engaged with other regulators in the course of assessing this application. SEPA has issued a CAR licence and Marine Scotland Science has assessed operational plans including requirements in terms of access and stock security at a remote site, (vessel and use of remote technologies), containment plans, (Contingency planning for escapes and suitability of equipment), husbandry and protocols for production of secondary species. Marine Scotland Science has advised that the information provided on the access to a remotely located site is satisfactory as far as can reasonably be foreseen, provided that the proposed plans for operating the site are put into action by the applicant. A Section 34 Coast Protection Act consent has been granted.

SPP – LANDSCAPE AND NATURAL HERITAGE [PARA 125 – 148] 12.8 The impact of the development on Landscape and Natural Heritage has been cited by many in representations. It is therefore necessary to quote the guidance on these aspects of the SPP at some length and to consider the issues raised.

12.9 [para 125] ‘Scotland’s landscape and natural heritage are internationally renowned and important, underpinning significant industries such as the food, drink and tourism industries, and are a key component of the high environmental quality which makes Scotland an attractive place in which to live, do business and invest. Improving the natural environment and the sustainable use and enjoyment of it is one of the Government’s national outcomes. Planning authorities should therefore support opportunities for enjoyment and understanding of the natural heritage’. (The Natural Heritage of Scotland includes flora, fauna, geological and physiographical features, its natural beauty and its amenity) ….

12.10 [para 132] ‘Planning authorities should apply the precautionary principle where the impacts of a proposed development on nationally or internationally significant landscape or natural heritage resources are uncertain but there is sound evidence for believing that significant irreversible damage could occur. Where the precautionary principle is justified, modifications to the proposal which would eliminate the risk of irreversible damage should be considered. The precautionary principle should not be used to impede development unnecessarily. Where development is constrained on the grounds of uncertainty, the potential for research surveys or assessments to remove or reduce uncertainty should be considered’ ….

12.11 [para 129] ‘All public bodies, including planning authorities, have a duty to further the conservation of biodiversity under the Nature Conservation (Scotland) Act 2004, and this should be reflected in development plans and development management decisions. Biodiversity is important because it provides natural services and products that we rely on, is an important element of sustainable development and makes an essential contribution to Scotland’s economy and cultural heritage’

BIODIVERSITY DUTY 12.12 All public bodies, including planning authorities, have a duty when exercising their respective functions to further the conservation of biodiversity under the Nature Conservation (Scotland) Act 2004, so far as is consistent with the proper exercise of those functions. SPP defines the term “biodiversity” as the variability among living organisms from all sources including terrestrial, marine and other aquatic eco- systems and the ecological complexes of which they are part. This includes diversity within species, between species and of ecosystems (UN Convention on Biological Diversity, 1992). 12.13 Biodiversity is short for biological diversity and may simply be taken as meaning the variety of all living things in the natural world. This includes all plants and animals from the smallest ladybird to the largest whale.

12.14 At the Rio 'Earth Summit' in 1992, the UK Government signed up to the 'Convention on Biological Diversity' and pledged to develop and implement plans of action to protect and enhance biodiversity in the UK and internationally. 12.15 In 1994, the UK Government published the UK's Biodiversity Action Plan (UK BAP), which set out steps needed for biodiversity conservation in the UK. The overall goal of the UK BAP is to ‘conserve and enhance biological diversity within the UK and to contribute to the conservation of global biodiversity through all appropriate mechanisms’. 12.16 Following a 2-year review of the UK BAP process and priorities, the current UK BAP priority species (and habitats) list was published in August 2007. This list contains 1150 species, highlighted as priorities for conservation actions in the UK. The List of UK BAP Priority Species is an important reference source and the focus for conservation action across the UK over the next decade. 12.17 The Scottish Biodiversity Group was set up in 1996 to guide the necessary work arising from the UK Action Plan in Scotland. The current Scottish Biodiversity List was published in 2005 and satisfies the requirement under Section 2(4) of The Nature Conservation (Scotland) Act 2004. The purpose of the list is to help public bodies carry out their Biodiversity Duty by identifying the species and habitats which are the highest priority for biodiversity conservation in Scotland. The list contains a large proportion of the total 1150 UK BAP species and is the definitive reference for all statutory and non-statutory bodies involved in operations that affect biodiversity in Scotland. It should be used to guide decision-makers in implementing their statutory duties to have regard to the conservation of biodiversity in the exercise of their normal functions. 12.18 A major means of implementing this Plan is through the preparation and application of plans at a local level i.e. through Local Biodiversity Action Plans (LBAPs). A Local Biodiversity Action Plan (LBAP) is a process rather than a plan in the conventional sense. It is a mechanism, which seeks to ensure that nationally and locally important species and habitats are conserved and enhanced in a given area through focused local action. The Comhairle and Scottish Natural Heritage commissioned the Scottish Agricultural College to undertake a biodiversity audit which was produced in June 2002. This list has not been reviewed since the publication of the 2007 and 2005 respective revisions to the UK and Scottish lists. 12.19 In satisfying its duty under Section 1 of the Nature Conservation (Scotland) Act 2004 (the 2004 Act) to further the conservation of biodiversity a planning authority in assessing a planning applications requires to consider potential impacts on biodiversity, proposals for mitigation and potential enhancement and if reasonable and necessary, to impose conditions. 12.20 Development, by its very nature, interacts with the natural world and interacts with biodiversity at some level; building a house or a garage may affect a meadow or moorland being the habitat of insects, birds or wild animals. 12.21 However it is not, as the Comhairle’s planning service understands it, in the spirit of the legislation that planning authorities simply cease to allow development where there are species or habitats present, but rather that in preparing the Development Plan or carrying out an assessment of a planning application for development, planning authorities should have careful regard to the impact of that development on the planet’s biodiversity in a broader sense and on any particular biodiversity issues which may arise in respect of the individual application. In later sections of this Report, further careful consideration is given to the potential impact which the proposed fish farm could have upon biodiversity. 12.22 In considering applications for planning permission, the Comhairle requires to have regard to the statutory EIA and planning processes which in themselves are mechanisms that aid the Comhairle to discharge its duty under Section 1 of the 2004 Act since they elicit environmental information as to the extent to which there may be an impact upon the conservation of biodiversity. The Comhairle seeks the advice of

SNH on natural heritage matters and that of SEPA, Marine Science Scotland and the DSFB on marine aspects of biodiversity and should place due and appropriate weight on their advice. In this case the development was the subject of EIA Screening and in that process advice given by both SNH and the Comhairle’s Biodiversity Officer amongst others. An assessment was undertaken and clear reasons provided as to why in the opinion of the planning authority the proposed development was unlikely to present a significant risk to the environment. Following a legal challenge to that Opinion, the Comhairle requested that Scottish Ministers issue an EIA Screening Direction. Scottish Ministers also considered the potential effects of the development on the environment and concluded that none were potentially significant. In the course of assessing the planning application, further consideration is given to the natural heritage interests in the context of the Comhairle’s Development Plan, the advice of consultees, and material considerations including Scottish Planning Policy, and third party representations. That process has involved a site visit, a desktop assessment of the planning application, consideration of the presence, relative conservation importance and impact on species and habitats, the relative abundance of their habitat, the likelihood of impact in a wider sense and the appropriateness and enforceability of mitigation measures. Having followed through that process and in light of environmental and other relevant planning issues, consideration has been given as to whether it is appropriate to recommend approval, approval with enforceable conditions or to refuse planning permission for the development. 12.23 Members of the Comhairle require to be aware of their duty to further the conservation of biodiversity and require to give careful consideration to that duty when considering the biodiversity issues and to assist in the discharge of the biodiversity duty under Section 1 of the 2004 Act. For the reasons set out above in this section, and considered in more detail below, the Comhairle is advised that if the reasons and recommendations contained in a planning report are accepted by members and no other matters were identified which would cause the Comhairle to question whether it was acting in compliance with the biodiversity duty, then a decision to accept a recommendation to approve an application would not result in the Comhairle being in breach of that duty. Equally, if the Comhairle takes the view that the impacts on biodiversity have been underestimated by an applicant or the statutory consultees, or that the representations made by objectors have identified matters which lead to a conclusion that the Comhairle would not be acting in accordance with the biodiversity duty then it would be open to the Comhairle to seek further information on the relevant aspect in order to be satisfied that there would be no breach of the duty or, indeed, to refuse an application. 12.24 International designations – [para 134]. ‘Sites classified as Special Protection Areas (SPA) under the Birds Directive and designated as Special Areas of Conservation (SAC) under the Habitats Directive form an EU-wide network of protected areas known as Natura 2000’

12.25 The Habitats Directive is binding on all member states. Article 1 of the Habitats Directive is the definition article. • It defines "species of Community interest" in four categories, respectively "endangered", "vulnerable", "rare", and "endemic” and requiring particular attention [for various specified reasons] • It defines “conservation status of a species" to mean "the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations". • It further provides that: "The conservation status will be taken as 'favourable' when:  population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and  the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and  there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis".

12.26 Articles 3 to 11 of the Habitats Directive address the "Conservation of natural habitats and habitats of species" while Articles 12 to 16 of the Habitats Directive address the "Protection of species".

12.27 The application site is not in or in close proximity to an SPA or SAC (Natura 2000 site). There are species of conservation importance in the vicinity of the proposed development but their habitats are not designated under any international or EU Habitats designation. 12.28 National Designations - A National Scenic Area (NSA) is an area which is nationally important for its scenic quality. Development that affects a NSA, should only be permitted where it will not adversely affect the integrity of the area or the qualities for which it has been designated, or any such adverse effects are clearly outweighed by social, environmental or economic benefits of national importance.’[para 137]. ‘Landscape is constantly changing and the aim is to facilitate positive change whilst maintaining and enhancing distinctive character. Different landscapes will have a different capacity to accommodate new development and the siting and design of development should be informed by local landscape character’ [para 127]. 12.29 The application site falls within the South Lewis, Harris and North Uist National Scenic Area (NSA) a National landscape designation. The landscape and visual impact of the development has been the subject of advice from SNH, commented on above in the response to Structure Plan policy RM9 and discussed in the following paragraphs and in the comment on representations at Point 13.52 – 13.61. Legislation defines National Scenic Areas (NSAs) as areas ‘of outstanding scenic value in a national context’. The South Lewis, Harris and North Uist National Scenic Area is one of 40 NSAs first designated and described in the Countryside Commission for Scotland’s 1978 publication ‘Scotland’s Scenic Heritage’. Scottish Ministers issued a Designation Direction - The Town & Country Planning (National Scenic Areas) (Scotland) Designation Direction 2010 in respect of all 40 NSA Designations on the 17 December 2010 bringing the NSA’s under the provisions of the Town & Country Planning (Scotland) Act 1997. The South Lewis, Harris and North Uist takes in a land area of 112,301 hectares and a Marine Area of 90,087 hectares totalling 202,388 hectares and has the largest total area of the 40 National Scenic Areas in Scotland. 12.30 The Description of the NSA given in the 1978 publication makes reference to the Sound of Harris as follows: ‘The scatter of islands in the Sound of Harris acts as a visual link between South Harris and North Uist, as well as creating a seascape of scenic beauty. The wide sandy strands of North Uist reflect much of the character of the west coast of South Harris and similarly afford views across the sea to the mountains of North Harris.’ 12.31 In 2010 SNH ‘Commissioned Report 374’ published more detailed descriptions in the form of the special qualities of the National Scenic Areas. This publication defines the special landscape qualities of the NSA’s as ’the characteristics that, individually or combined, give rise to an area’s outstanding scenery’. 12.32 The special qualities of the South Lewis Harris and North Uist NSA per the 2010 report lists amongst the generic special qualities: • A rich variety of exceptional scenery – the bold rugged hills of South Lewis and Harris complementing the islands in the Sound, and the islands in turn appearing as an extension to the water dominated landscape of North Uist. • A great diversity of seascapes. • Inter-visibility between landscapes, …views to another landscape type. The eye continually led to distant horizons.

12.33 The location specific qualities of the Sound are stated as: ‘the dramatic, island studded Sound of Harris’ as follows: ‘The shallow sound of Harris forms a dramatic and hazardous passage …studded with islands, islets, skerries and sunken reefs, it presents a compelling seascape of islands, forming a transition between the high rock clad hills of Harris and the low lying watery and drowned landscape of North Uist... The rocks are dark in colour... The proportion of land to water constantly changing depending on one’s position and the tide. The movement of currents, waves and shadows provides continual interest... The rock forming much of the Sound of Harris coastline and the underlying rock is metanorite, an igneous rock very dark in colour... Textures vary from rocky knolls to coastal turfs, with roughness pre-dominating on sea and land. Point features that catch ones eye, especially in darker weather and at night are the numerous navigation lights surmounting some of the islands and skerries. …Grodaigh has a distinctly vertical shoreline and appears block-like within the Sound.’

12.34 The planning application addresses these issues through Appendix 9 – Presentation of Visual Appearance of Proposed Development, and further information submitted at the request of the planning authority in the form of a ‘Land and Seascape Visual Impact Assessment’ (LSVIA). The LSVIA looks at both the impact on Landscape i.e. ‘Change in the fabric, character, and quality of the land and seascape as a result of a development’ and visual impact i.e. the ‘Effects on people, of the changes in available views, through intrusion or obstruction.’ The LSVIA presents the ‘Land and Seascape’ characteristics of the Sound of Harris, identifies the potential receptors, assesses the visibility of the development (Figure 2 illustrates the distance of development from main settlements and shows the ferry route), the cumulative impacts, mitigation measures and concludes that with respect to land and seascape receptors which could be impacted by change in their fabric, character and quality, the proposed development is unlikely to have a significant effect and that in terms of visual impact the views from the ferry are low magnitude due to the distance from the ferry to the development, the backdrop and the short-lived experience. It acknowledges that the impact from the reconstructed sheiling on Lingay will be high.

12.35 The 2004 Landscape Character assessment defines the Groay - Lingay islands as ‘rocky moorland’. The applicant has advised that the fish farm has been sited in accordance with the guidance in SNH’s publication ‘The Siting and Design of Marine Aquaculture in the Landscape’ in that the cages are arranged in groups and sited against the backdrop of the landform. However, as noted SNH has advised that in their opinion the siting and design of the proposal does not wholly reflect the scale and subtleties of the shape and scale of the coastline and that the northerly cage group will intrude into an area of open water between Groay and Lingay.

LANDSCAPE IMPACT 12.36 Consideration is therefore given to the impact on the landscape of the proposed development i.e. ‘Change in the fabric, character, and quality of the land and seascape’. The Sound is a vast seascape studded with rocks, skerries and islands of varying size. They are typically of a relatively low lying topography and have a dark grey rocky shoreline. The proposed development secures a level of screening from Groay to the south-west, Lingay to the south-east, Scaravay to the south and Gilsay to its north east. The site is open to the north-west. Groay and Lingay rise to circa 20-25m AOD and from most directions will provide natural screening to the cages (1.4m above sea surface with predator nets 1m above) and the feed barge (c.4.2m when full rising to 6m when empty of feed). When viewed from the north, the dark shoreline and topography of Groay and Lingay will largely provide a natural backdrop which can absorb a relatively low lying development such as a fish farm against the shoreline. From the NNW and from the Little Minch the structure will become slightly more visible at high tide as the reefs submerge reducing the backdrop.

12.37 The surrounding area of sea is not wholly undeveloped as there is extensive navigation lighting and buoys through and across the Sound, ferry, fishing, commercial and pleasure boat traffic. The area is a working landscape/seascape and not considered to be ‘wild land’. The existing navigation lighting is prominent and is referred to within the ‘location specific qualities’ of the Sound within the 2010 SNH published guidance on the special qualities of the NSA. The additional navigation lighting required at the fish farm for navigation warning is therefore not considered a major intrusion in a landscape that already has extensive navigation lighting.

12.38 The fish farm structure is relatively low in the water and in the distance will largely be absorbed by the backdrop of islands, reefs and foreshore. In good light conditions on a high tide some of the infrastructure may be visible but overall the change in the character of the seascape is localised. It is therefore assessed to be of low magnitude. It is considered that the landscape impact would not therefore merit the refusal of the application.

VISUAL IMPACT 12.39 The visual impact i.e. the effects on people, of the changes in available views focuses on the experience of different receptors; views from the villages of Strond and Borrisdale, passengers on the Sound of Harris ferry, pleasure boat and marine traffic in the Little Minch and Sound and relatively infrequent visitors to the islands of Groay and Lingay (the re-constructed sheiling on Lingay being for temporary shelter and not a permanent residence).

12.40 The beauty of the Sound as per the ‘special qualities’ is in the overall view – the seascape set against the rugged hills of South Lewis and Harris and the low lying shores of North Uist. The sheer number of small islands and skerries in the Sound interrupt visual linkages between the mainland and the islands. The higher vantage points will include Roinneval hill in South Harris (c. 6Km) and certain high points in the Strond and Borrisdale villages, but from here the islands of Groay and Lingay will be in the distance. At a distance of 5km (circa 3 miles), the residents of Strond and Borrisdale are unlikely, except in exceptionally clear weather conditions, to be able to see the development infrastructure with the naked eye. Navigation lighting is to be visible at a notional 2 mile radius but in the context of other navigation lighting in the Sound of Harris is unlikely to result in significant adverse direct or cumulative visual impact.

12.41 Vantage points from within the Sound itself are generally low lying. The passenger accommodation on the Sound of Harris ferry sits at circa 6m above sea level. The ferry will come within 1.4km (circa 0.8 miles) of the site and passengers will be able to see the site from the car-ferry on approximately 20 minutes of the 1 hour crossing. However, that experience is relatively short-lived and alternative visual experiences of the National Scenic Area and the Sound are abundant from the ferry. Marine traffic and pleasure boats will, depending on their distance to the development, have sight of the development when passing through Cope’s passage. However, that experience is also likely to be short-lived.

12.42 The main islands which surround the proposed development are not subject to habitation on a permanent basis. The sheiling recently re-built on the shore of Lingay island is conditioned for occasional use (as a shelter only - not for permanent residence) while the island of Groay is used for grazing sheep. The visual impact from these islands will be high due to the close proximity of the farm to the shores of these islands. However, Groay and Lingay are both un-inhabited islands and the receptors comprise small groups of people on an infrequent basis (infrequent visits to the island by owners, guests and day-boaters/wildlife trips). The planning system exists to protect the wider public interest and although the impact of the development on persons on the islands will be high, the overall impact as un-occupied islands is considered to be low.

12.43 In assessing the impacts of the proposal on both the landscape and visual impact the Comhairle’s planning service has independently considered the developers submissions, carried out a site visit, taken the expert advice of SNH, reviewed the special qualities of the NSA and assessed the nature of the development against the absorption capacity of the landscape and the impact on receptors from a range of viewpoints.

12.44 In view of the siting, the low lying nature of the structure and the absorption capacity of the landscape, the landscape impact is considered to be localised and assessed overall to be low. The distance from the mainland shore, nature of experience when viewed from the ferry, other boats or vessels, and the small number and infrequency of receptors on the surrounding islands is such that the visual impact is also assessed overall to be low.

12.45 While acknowledging that the sight of the proposed fish farm may be unacceptable to some using the ferry and boating in the Sound, overall, the conclusion is that the use of the area of sea for the proposed farm does not unacceptably affect the landscape and visual impact and in these circumstances does not merit refusal of the application.

PROTECTED SPECIES 12.46 ‘Many species are legally protected and their presence or potential presence is an important consideration in decisions on planning applications. Although their presence rarely imposes an absolute block on development, mitigation measures are often needed and the layout, design and timing of works may be affected. If there is evidence to suggest that a protected species is present on site or may be affected by a proposed development, their presence must be established, the requirements of the species factored into the planning and design of the development and any likely impact on the species fully considered prior to the determination of the planning application.’ [para 142]

12.47 Planning permission must not be granted for development that would be likely to have an adverse effect on a European protected species unless the planning authority is satisfied that: there is no satisfactory alternative, and the development is required for preserving public health or public safety or for other imperative reasons of overriding public interest including those of a social or economic nature and beneficial consequences of primary importance for the environment. In no circumstances can development be approved which would be detrimental to the maintenance of the population of a European protected species at a favourable conservation status in its natural range.’[para 143].

12.48 Articles 12 to 16 of the Habitats Directive address the "Protection of species". A number of protected species have been identified as being the key species present in the vicinity of the proposed farm development. These are: • cetaceans and otters - both are ‘European Protected Species’ (EPS) being listed on Annex IV (a) of the Habitats Directive as ‘animal’ species of ‘community interest in need of strict protection’. Article 12 of the Habitats Directive therefore applies to these species and prohibits: (a) all forms of deliberate capture or killing of specimens of these species in the wild; (b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration; (c) deliberate destruction or taking of eggs from the wild; (d) deterioration or destruction of breeding sites or resting places." • common and grey seal, listed on Annex II of the Habitats Directive as ‘species of community interest whose conservation requires the establishment of Special Areas of Conservation (SAC)’. • cormorant – protected under the Wildlife and Countryside Act 1981 and on the Western Isles LBAP list from the 2002 Audit.

12.49 In relation to EPS and planning applications, an important consideration for all local authorities is that Regulation 3(4) of the 1994 Regulations requires every competent authority to have regard, in the exercise of its functions, to the provisions of the Habitats Directive “so far as they might be affected by those functions”. This requirement applies to local authorities when carrying out their functions under planning legislation. In exercising its function as a planning authority three initial questions require to be asked: • Are EPS present on the site for which planning permission has been sought? • If EPS are present, what implications do the proposals for the site have for the species in question? • In the event that potentially negative effects are evident, to what extent can these be prevented by either a voluntary alteration of the project design or by appropriate conditions to any grant of planning permission?

12.50 Interpretation of Article 12 (1)(b) of the Habitat's Directive 92/43/EEC Direction “deliberate disturbance of [EPS] species, particularly during the period of breeding, rearing, hibernation and migration..” is afforded some clarification by the English Court of Appeal and UK Supreme Court in a recent case (Regina (Morge) v Hampshire County Council),:

• 'Deliberate' actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against the species, but intends this offence or, if not, consciously accepts the foreseeable results of his action." Put more simply, a deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species...” • "Consideration should be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of a particular protected species. Individuals of a rare species are more important to a local population than individuals of more abundant species. Similarly, disturbance to species that are declining in numbers is likely to be more harmful than disturbance to species that are increasing in numbers." • …“every case has to be judged on its own merits. A "species-by-species approach is needed" and, indeed, even with regard to a single species, the position "might be different depending on the season or on certain periods of its life cycle"…; "it has to be stressed that the case-by-case approach means that the competent authorities will have to reflect carefully on the level of disturbance to be considered harmful, taking into account the specific characteristics of the species concerned…" The planning authority must therefore satisfy itself as to its responsibilities under the Habitats Directive in assessing a development for planning permission.

CETACEANS 12.51 Cetaceans (whales, dolphins and porpoises) are present in the waters around the West Coast of Scotland.

CETACEAN - CONSERVATION STATUS 12.52 All cetaceans are protected under the Wildlife and Countryside Act 1981, the EU Habitats Directive and the Nature Conservation (Scotland) Act 2004. 12.53 The Wildlife and Countryside Act 1981 provides protection of all cetaceans found within UK territorial waters. Under Section 9 of the Act, it is an offence to intentionally kill, injure or take cetaceans; and to cause damage or destruction to certain areas used by cetaceans for shelter and protection, or to intentionally disturb animals occupying such areas.

12.54 All cetaceans are listed in Annex IV of the EC Habitats Directive as species being in need of strict protection and to which Article 12 applies. Under this Article it is an offence to deliberately capture, kill or disturb cetaceans; or to cause deterioration or destruction to their breeding or resting places.

12.55 The Nature Conservation (Scotland) Act 2004 contains measures to improve the existing species protection, including the extension of existing protections for cetaceans from intentional disturbance to encompass protection from 'reckless' disturbance.

12.56 The cetaceans commonly found on the west coast of Scotland appear on the UK BAP list, the Scottish List and the Western Isles LBAP list.

CETACEAN - DETAILS WITHIN THE PLANNING APPLICATION 12.57 Appendix 12 to the Planning Application identifies Cetaceans as being frequently sighted in the Minch, East Coast of Uist and the Sound of Harris.

12.58 No area or site specific data is available, and the context given is that cited from published sources i.e. 24 species of cetacean have been reported as being present on the West Coast of Scotland including harbour porpoises, bottlenose, common, white-beaked and risso dolphin, minkie and killer whale and the particular species sighted in southern Scottish waters, around the North of Skye and the Small Isles (Rhum, Canna, Muck and Eigg).

CONSULTEE ADVICE 12.59 SNH has provided advice: “Cetaceans (dolphins and whales) are European Protected Species (EPS) and have been reported using the area of deeper water towards the Minch, adjacent to the proposed fish-farm. We note that the applicant intends to monitor the effect on cetaceans and only intends to use triggered Acoustic Deterrent Devices (ADDs). Based on previous cetacean monitoring carried out in the Sound of Mull in relation to a fish farm’s use of ADDs, we do not anticipate that the proposed development will have a significant effect on the cetaceans using the adjacent area or passing through.” OFFICER COMMENT 12.60 The proposed fish farm is sited within a group of islands and it is not anticipated that the siting of the farm infrastructure will have a direct impact on cetaceans or their habitat which lies in the deeper water of the Minch and the Sound of Harris. However there is potential for in-direct impact arising from the use of Acoustic Deterrent Devices (ADD’s) as a non-lethal predator control measure for seal predation and this has been considered by SNH. Their advice on the matter following publication of a SARF report on ADD’s (author SMRU) is detailed at Paragraphs 8.6- 8.62.

12.61 The application states that ‘triggered acoustic deterrents’ which remain silent for the majority of the time would be used thereby minimising the potential time when acoustic transmissions may affect cetaceans in the locality. This type of device is that preferred for use by SNH.

12.62 In line with SPP the potential for the species to be present in the vicinity is identified, the advice of SNH has been sought in relation to the likely effects and the potential impact considered by them as unlikely to be significant. SNH do not request the imposition of any conditions in mitigation of any potential (non-significant) effects and do not indicate that the ADD use would require to be licensed or a licence obtained to deal with potential disturbance to EPS. OTTER 12.63 Otters are land mammals, but spend a considerable amount of time in water. They live in holts used for shelter and/or for breeding.

OTTER - CONSERVATION STATUS 12.64 By virtue of the EC Habitats Regulations 1994, otters are also European Protected Species (EPS). Under the provisions of Article 12, it is an offence to deliberately or recklessly: capture, injure or kill or harass an otter; disturb an otter in a holt or disturb an otter while it is rearing or otherwise caring for its young.

12.65 Otters are also a UK BAP priority species and included on the Scottish Biodiversity List and Western Isles LBAP as species of principal importance for biodiversity conservation. As a UKBAP priority species, otters are a priority for conservation action under the UK BAP.

OTTER - DETAILS WITHIN THE PLANNING APPLICATION 12.66 Appendix 12 to the Planning Application states that otters are likely to be present in the area as they are locally common in the Sound of Harris and much of Uist. It notes that they are likely to be present on the islands of Groay and Lingay.

12.67 It goes on to cite research on otter behavior, including the range and depth of their foraging trips (most in water depth of less than 10m and 62% of trips within 20m of the shore and 98% within 80m of the shore. It concludes that the proposed farm site is not within the usual foraging range of otters. (The proposed farm at its closest point to land is 300m from the shore). It goes on to cite examples of otters resident in close proximity to other aquaculture farms and concludes that the proposed farm is unlikely to result in any significant effect on local populations which may be present.

CONSULTEE ADVICE 12.68 SNH has been consulted and advises that Otters are ‘present throughout the Western Isles. Observations from other operational fish farms show that otters continue to use the area. We are of the opinion that the otters on Groay and Lingay are unlikely to be significantly disturbed by the activity of the fish farm.’..It is our view that there is a risk of localised disturbance to some species…otters…but the risks are low and not of national importance.”

OFFICER COMMENT 12.69 Otters are identified by the applicant as present in the vicinity of the proposed farm and likely to be present on the Groay Lingay islands. Their requirements are considered i.e. Otters forage in the water but their holts are ashore. SNH state that there is risk of localised disturbance but that the risks are low and not of national importance. SNH therefore validates the view presented in the application i.e. that otters are unlikely to be significantly disturbed by activity from the proposed farm. SNH do not indicate that the activity would require to be licensed in terms of European Protected Species

12.70 In light of the above it is concluded that while EPS species, namely cetaceans are identified as being present in the deeper waters of the Minch and Sound of Harris and otters resting and or breeding ashore on Groay and Lingay and foraging in the vicinity of the proposed farm: • There is no intention or likelihood that there would be "deliberate" capturing or killing of otter or cetaceans. • Otters and cetaceans are unlikely to be significantly affected by the development and any disturbance (through use of triggered acoustic scaring devices and/or operation of the fish farm) will not affect the favourable conservation status of the species at population level i.e. any risk of disturbance being low and localised.

GREY AND HARBOUR SEALS 12.71 Two species of seal live in UK waters; grey seals and harbour (or common) seals. Both species are present in the Sound of Harris and in and around the Groay - Lingay Islands.

GREY AND HARBOUR (COMMON) SEALS - CONSERVATION STATUS 12.72 Seals are listed on Annex V(a) of the Habitats Directive and therefore appear on Schedule 3 to the Habitats Regulations (species for which SACs must be designated) and to which species Regulation 41 (and Article 15) applies (prohibition of certain methods of taking or killing). Both seals species are of "community Interest" meaning they are relatively uncommon across Europe as a whole.

12.73 In Scotland, it is for SNH to identify a number of Special Areas of Conservation (SACs) for harbour and grey seals. SACs protect the habitat of species and for seals are understood to be selected on the basis of the numbers of seals breeding within each area combined with a reasonably even spread of areas around Scotland.

12.74 The Sound of Harris and the area in and around the proposed farm are home to both common and Atlantic grey seals but is not designated or proposed for designation as an SAC. The isles of Shillay and Coppay lying to the north west extremity of the Sound of Harris are designated Site of Special Scientific Interest (SSSI) (as part of the small seal islands which are distributed along the Atlantic coast) for their breeding Atlantic Grey Seal populations of national importance.

12.75 As noted above under the Habitats Directive, Grey and common (harbour) seals are protected from being taken or killed except in certain ways and for certain purposes. Individuals may apply for a licence to take/kill seals, in the prescribed ways and for prescribed reasons but always with evidence to be provided to show that there is no satisfactory alternative, and that such actions would not be detrimental to the favourable conservation status of the seal populations.

12.76 In Scotland new domestic legislation offers enhanced protection for seals.

12.77 Part 6 of The Marine (Scotland) Act 2010 (the 2010 Act) came into force on 31 January 2011 and replaces the outdated Conservation of Seals Act 1970. It provides improved protection for seals and a new comprehensive licence system to ensure appropriate management. The Seal Licensing Scheme merits further explanation.

12.78 Part 6 seeks to balance seal conservation with sustainable fisheries and aquaculture and its introduction means: • It will be an offence to kill or injure a seal except under licence or for welfare reasons, outlawing unregulated seal shooting that was permitted under previous legislation • A number of seal conservation areas around Scotland will begin to be introduced, designed to protect vulnerable, declining common seal populations • A new seal licensing system, providing a well regulated and monitored context for seal management in Scotland will be introduced 12.79 Under the 2010 Act it is an offence to kill or take any seal at any time (the closed season having been extended year round), except under licence or for animal welfare concerns. Seal licences (Section 110 - 116 of the 2010 Act) are intended to provide enhanced protection measures for seals. The 2010 Act imposes a duty to report the killing or taking of seals under licence or for welfare reasons. Seal licences may be issued for: scientific research, conservation of other species or habitats, protecting zoological or botanical collections, preserving public health, preventing spread of disease, preventing serious damage to fisheries or fish farms or for other imperative reasons of overriding public interest.

12.80 Information by Marine Scotland Science is appended to the consultation responses at Annex E. It states that ‘The new licence system will consider appropriate animal welfare issues. It will specify the method of killing or taking seals and the maximum number. The reporting requirement will also specify the general areas and general circumstances for killing or taking. The licence system will be based on the model developed in the successful Moray Firth Seal Management Plan pilot, and will involve the use of a Permitted/Potential Biological Removal (PBR), which provides a

maximum number of seals that can be removed without affecting the wider population. The PBR will take into account differences in the size of the grey and common seal populations and between regional seal populations. It will include consultation with statutory scientific advisers - Natural Environment Research Council's Special Committee on Seals and Scottish Natural Heritage - and with Marine Scotland Science’.

12.81 The Scottish Government using provisions under Part 6, Section 118 of the Marine (Scotland) Act 2010 (implementation date 31 January 2011) created a ‘Seal Conservation Area’ for common seal covering the whole of the Western Isles. The Government considers this necessary to ensure the ‘proper conservation of seals’ and it will remain in place until such time as concerns about the local population of common seals are resolved.

12.82 This conservation area status relates to the licensing of the taking or killing of seals and is not to a Special Area of Conservation (SAC) designation per the Habitats Directive. The effect of seal conservation area status is that Scottish Ministers must not grant a seal licence authorising the killing or taking of seals in a seal conservation area unless they are satisfied that there is no satisfactory alternative way of achieving the purpose for which the licence is granted and that the killing or taking will not be detrimental to the maintenance of the population of any species of seal at a favourable conservation status in their natural range (within the meaning of Article 19e) of the Habitats Directive).

GREY AND HARBOUR SEALS - NATIONAL DATA 12.83 The Sea Mammal Research Unit (SMRU) based at St Andrews University, is a Collaborative Centre that provides the UK’s main science capability in the field of marine mammal biology. The SMRU publication ‘Scientific matters related to the Management of Seal Populations - 2009.’ An annual report prepared for presentation to the Special Committee on Seals (SCOS). Contains recent scientific advice. For the benefit of the reader the following notes (not part of the application as submitted) are provided to aid explanation of the SMRU data cited and/or presented in the application and in representations.

12.84 Grey and harbour seals differ in biology and habit and they are therefore monitored by SMRU at different times during their annual cycle.

12.85 Grey seals breed at traditional colonies where females give birth to a single white- coated pup. About a month after being born the pups leave their birth sites for the sea. Because grey seals gather together to breed in particular colonies and because their pups are relatively easy to spot, the numbers of pups born at the major breeding colonies can be counted relatively easily (SCOS 2009).

12.86 Harbour seals however, do not gather together during their breeding season. Pups are usually born below the high water mark wearing their first adult coat, having moulted their white downy coats while still in their mother’s uterus. Because the pups can swim within a few hours of birth, and because their mothers don’t breed in large groups, it is more difficult to obtain accurate information on the numbers of pups born in any location in any year. Instead, harbour seals are monitored during their annual moult, when it is believed that the greatest and most consistent numbers of animals can be found ashore (SCOS 2009).

GREY AND HARBOUR SEALS - DETAILS WITHIN THE PLANNING APPLICATION 12.87 In the Planning Application – Appendix 12, the applicant cites the 1992-2008 SMRU data on the presence and abundance of both grey and common seals within circa 3 and 5km of the proposed development and 2008 grey seal pupping records for the Groay Lingay islands. The application therefore identifies the presence of the species and its abundance in the vicinity as recorded independently by the SMRU.

For 2008 the number of pre-breeding grey and post breeding harbour seals present within the +/-3km and 5km range are presented as a percentage of the Western Isles population. 2008 (SMRU) +/-3km 5km Grey Seal 0.2% 0.47% Common Seal 0.1% 3.7%

12.88 The application also provides data for the number of grey seal pups born on Groay and Lingay in the 2008 pupping season. No comparable data is available or provided for common seal pups. 2008 (SMRU) Groay Lingay Total No. of Pups 83 64 147 No. as % of WI - - 1.1% total Pups No as % of UK - - 0.3% total pups 12.89 The following summarises the further information* contained in Appendix 12 re seals (*referenced to the scientific sources): • Studies have shown that the presence of aquaculture sites do not affect the number of seals in an area.* • Seals can be habituated to the presence of humans particularly if that presence occurs in a predictable way.* • Most seals spend 1-5 days foraging at sea – within 40km of their haul out sites.* • Grey seals movement has been shown to range 75-365 km while foraging.* • Grey seals while breeding spend the majority of time ashore.* • Common (Harbour) seals forage at ranges of up to 50km from haul outs but while pups are weaned (typically at 4 weeks) distances are shorter.* 12.90 Some management assumptions are then presented: • Timing of highest seal numbers in vicinity of proposed farm may not correspond to period of highest interactions. • If seals are prevented from gaining access to the farmed fish, negative interactions will be minimised. • Post weaned pups being inquisitive and naive are at heightened risk of ensnaring on fish farm equipment. 12.91 Management measures are presented. These include in summary: • Use of highly tensioned anti-predator netting. • Frequent removal of mortalities. • Management of predation allocated to a responsible person with scientific background with 2-3 year scientific collaborative project informing future management measures. • Development of season specific anti predator management plan. • Development of measures within the context of the Marine Scotland Act 2010. • Participation in industry/academia studies to further develop non lethal predator control means. • Managed to achieve food industry standard accreditations.

12.92 In further information, the application states that ‘it is envisaged that the Groay-Lingay site would be operated within the context of the Western Isles Seal Management Area. Within this context it is an option for fish farmers across the Western Isles to collectively apply for seal management measures, though individual sites must be specified and data recorded on any management activities. Acoustic deterrents, other non-lethal measures as well as removal of problem animals are licensable through this procedure. Evidence of seal predation requires to be submitted with applications for seal management measures and as there is no farm interaction data available for Groay-Lingay, evidence for seal predation on other farm sites may be used in support of an application. As seal predation changes with site, over time and for other factors, it is assumed that the needs for seal management across the Western Isles Seal Management area will also vary. It is therefore anticipated that Groay-Lingay aquaculture site will become a participant in a Western Isles Seal Management Group. An application for the site will be made to Marine Scotland by mid November 2010. Licences are likely to be issued by end of January 2011.’

GREY AND HARBOUR SEALS - CONSULTEE ADVICE 12.93 SNH has been consulted (see paragraph 8.33 - 8.36 and 8.48 – 8.62 above) and in summary has advised as follows. • Grey seals - ‘The grey seal population in the Western Isles is stable, producing between 11,000 and 13,000 pups annually since 1992. Grey seals are present within the Sound of Harris area all year and do pup on the islands adjacent to the proposed development. …The proposed location of the development is between these two islands and will be within 500m of the colonies so there is potential for the seals to be disturbed by the fish-farm activity. It is our view that the grey seals are likely to continue using Lingay and Groay to pup, but if they do abandon these areas then there are alternative islands for them to use within the Sound of Harris area.’ • Common seals - “The common seal population is declining, both nationally and locally, and numbers in the Western Isles had reduced to 1,815 animals in the 2008 survey. Common seals are present within the Sound of Harris throughout the year. They use the numerous rocks and skerries dotted throughout the area as haul-outs. When pupping they gather in lower densities than grey seals and are more mobile as the pups are able to swim shortly after birth. Recent counts during the harbour seal moult in August 2010 confirm 67 common seals within 5km of the proposed development. If they choose to avoid the rocks and skerries adjacent to the fish farm once it is operational, then there are numerous alternatives for them to use but like the grey seals they may become accustomed to the activity. There are no designated sites for common seals in the Sound of Harris.” • Predator Control - The management actions proposed by the applicant are very thorough and we note that this includes the intention to undertake an ongoing management plan using a contractor/employee to address predator issues. If all the management actions specified are undertaken, this should be sufficient to avoid significant impacts on the seals. • Predator Control - Applications for shooting common and grey seals under a new licensing procedure detailed in Part 6 of the Marine (Scotland) Act 2010 were due in November 2010 for any seal shooting from 1st February 2011. Applicants were required to provide details of non lethal methods of seal predation prevention they employ and will report quarterly on the number of seals shot. Applications will be considered against the Potential Biological Removal (PBR) – the number of animals that can be removed without an effect on the Western Isles population. This figure will be calculated annually by the Seal Mammal Research Unit (SMRU).

OFFICER COMMENT 12.94 In line with the guidance in SPP the protected species present in the vicinity of the site is established, their requirements considered in the application and advice provided by SNH of the direct impact on the species of the siting of the proposed farm and interactions.

12.95 nteractions between the seals as predators of fish farms and the proposed farm is considered further in Section 13 below.

CORMORANT 12.96 Cormorant (Phalacrocorax carbo carbo), is primarily a coastal bird, nesting on cliffs and offshore islands.

CORMORANT - CONSERVATION STATUS 12.97 The Cormorant, in common with all wild birds is protected under the EC Wild Birds Directive (which is transposed into domestic legislation by the Wildlife and Countryside Act 1981). However, it is not an Annex 1 species i.e. it is not a bird species where special conservation measures in terms of habitat apply. Wild Birds cannot be killed, their eggs or nests (when in use or being built) taken or destroyed, except under licence.

12.98 The IUCN Red List identifies Cormorant as being in the category of ‘Least Concern’.

12.99 The Cormorant is not on the 2007 UK BAP priority species list. (The Cormorant was listed as a species of Conservation Concern in the original 1995 UKBAP list (referred to as the Long List), but it was dropped at the 2007 review). Nor is the Cormorant on the Scottish Biodiversity List (2005). Cormorant is however still listed as species of conservation concern within the Western Isles LBAP (2004). It was identified as a UK Species of Conservation Concern occurring in the Western Isles in the Western Isles LBAP Audit Report (June 2002) from the original 1995 UKBAP long list. The Western Isles list has yet to be reviewed in line with the National lists. The cormorant does not feature as a priority in the action plans on biodiversity for the Western Isles.

CORMORANT - DETAILS WITHIN THE PLANNING APPLICATION 12.100 The Planning Application (Appendix 12) notes that Seabirds and in particular Cormorants use the area around the proposed farm.

12.101 It cites a nesting area for cormorant (per the Seabird 2000 survey) which is 700m and on the opposite side of Lingay from the proposed site. It also notes that the position recorded in the survey is disputed by the owner of Lingay who has stated the grid reference on the survey to be incorrect with the main nesting area being on the South West tip of Lingay within 450m and in line of sight of the proposed farm site.

12.102 The application then details nesting period (assumed end of April to early July) but notes it may vary from year to year. It notes that the majority of boat traffic to the site will approach from the north west and should there be a requirement to use the south east approach at any time during the nesting season, the risk of potential disturbance would be mitigated by reducing engine revolutions and hence noise.

CORMORANT - CONSULTEE ADVICE 12.103 SNH has been consulted (See Paragraph 8.38) and has advised that ‘From the seabird 2000 data, there was a colony of 112 apparently occupied nests on Lingay. The proposed site will be visible as the birds leave and return to the colony, but so long as activity is confined to the development site and any vessels access the site responsibly then there is a high probability that the birds will habituate to the presence of the fish farm. The existence of alternative breeding sites and the ability to move colony location means that if there is any disturbance, it is unlikely to have an effect on the Sound of Harris population of breeding cormorants.’

OFFICER COMMENT 12.104 In response to representations SNH has provided further advice (Refer to Paragraph 8.44 – 8.46 above) and the species is discussed further in the context of representations in Section 13.129 – 13.136 below. The presence of the cormorant is noted as is the likely impact of the proposed development on the species. Mitigation measures have been proposed and SNH advice sought in this respect. The issues relating to cormorant impacts have therefore been fully considered in assessing the application.

BENTHIC HABITATS AND BENTHIC BIODIVERSITY 12.105 The benthic habitats likely to be affected by a fish farm are those living communities in the water column, seabed directly below the cages or in the zone of depositional effect.

BENTHIC HABITATS - DETAILS WITHIN THE PLANNING APPLICATION 12.106 Appendix 4 to the application contains the Benthic Report which includes survey details, methods, dates, sample positions (a survey of physiochemical characteristics and infaunal communities of the benthos conducted on 26 and 27 January 2009) and confirms that methods used were as described in the SEPA Fish Farm Manual, specifically for Extended Baseline Surveys.

12.107 Appendix 8 and the additional information on volume and impact submitted following request detail the shellfish species that may be grown on the long-lines.

12.108 The application does not identify any species or habitats of conservation importance under or in the area likely to be impacted upon by discharges from the farm.

BENTHIC HABITATS - CONSULTEE ADVICE 12.109 SNH has been consulted and advise ‘The hydrographic report states that the site is well flushed with residual currents heading SSE. We are not aware of the presence of any species or habitats of conservation importance present within the vicinity of the proposed site and none are recorded from the underwater video survey”

12.110 On polyculture, they further advise that “The introduction of a sea urchin species (Paracentrotus lividus) in large numbers into an area where they are not present naturally could result in a significant settlement of spat, particularly if suitable habitats are present. There is a risk that existing communities could be altered by competition with, or predation by, this sea urchin. However, we have consulted a specialist on this sea urchin at the Scottish Association of Marine Science (SAMS) and they advised that it is unlikely to breed in the location proposed.”

OFFICER COMMENT 12.111 SNH has advised that the surveys indicate that there are no existing communities of benthic biodiversity that are of conservation concern. MSS as part of its regulatory processes will require the applicants to agree management arrangements for shellfish species prior to the development commencing. The Planning Authority is entitled to place due weight on this professional advice.

SPP - FISH FARMING [PARA 107 – 109] 12.112 The policy guidance states that ‘When determining planning applications, authorities should take into account the direct and cumulative effects of the proposed development on the environment, including carrying capacity, visual impact and the effects on the landscape, marine historic environment and the sea or loch bed. The needs of local communities and other interests should also be taken into account alongside the economic benefits of the sustainable development of the fish farming industry and the operational needs of fish farms. The capacity of an area to accommodate fish farm development can be considered on a loch or voe wide basis. Where adverse cumulative impacts are significant and cannot be mitigated, planning permission should not be granted. Fish farms can be fitted into their surroundings to avoid or minimise visual intrusion and mitigation strategies should be incorporated into development proposals... ’[para 107]

12.113 The assessment of cumulative impact of the development is addressed above under the response to Western Isles Local Plan Policy ED4. However, in summary:

• The only other marine fish farms sites in the Sound of Harris lie to the South of Copes Passage and are sited approximately 4-5km away. Modelling and calculations demonstrate that the benthic and water column impacts of the proposed farm are localised and within environmental limits. The likelihood of cumulative impacts on water quality and benthos is therefore low. The site is in ‘open water’ as opposed to a sea loch and therefore there is adequate carrying capacity. The benthic visual survey and grab sampling did not identify any faunal or benthic communities of conservation concern. • The landscape and visual impact is addressed in more detail in response to the SPP guidance on Natural Heritage above. The landscape is considered to have sufficient absorption capacity to accommodate a low lying structure in the marine environment. Navigational warning lighting will be viewed in the context of existing navigation buoys and lighting in the Sound of Harris. Following assessment the conclusion is that there is no direct or cumulative visual or landscape impact that would be assessed as damaging to the special qualities of the NSA designation. • At the proposed distance from settlements no residential community will suffer adverse visual, lighting or noise impacts. • Historic Scotland has been consulted on the application and confirms that there are no monuments, Category A listed buildings or their settings, gardens and designed landscapes or designated wreck sites (Protection of Wrecks Act 1973) in the vicinity of the proposed development and in light of this the proposed development is unlikely to have a significant impact on any nationally important cultural heritage features. The Comhairle’s Archaeologist has also been consulted and is of the view that the possible archaeological feature cited would not lead her to recommend refusal of the application.

12.114 The development is therefore not considered to have adverse direct or cumulative impacts on visual impact, effects on the landscape, marine historic environment or on the seabed.

12.115 The Scottish Planning Policy guidance highlights that ‘There is potential for conflict between fish farming and local fishing interests, including commercial inshore fishing and recreational fishing. The effects of fish farm development on traditional fishing grounds, salmon netting stations and angling interests should be considered. Other uses of the inshore area, such as recreational use, should also be taken into account when identifying potential development areas and sensitive areas in development plans and when determining planning applications’.[para 109]

12.116 The community of interest in the marine environment in the sound of Harris includes, fishermen, sailing boats, the inter-island car ferry, marine traffic passing east or west through the Sound and those who use the area for recreation, primarily although not exclusively in the summer months. The siting of the farm has had regard to the need to keep the charted anchorage clear.

12.117 A consent under Section 34 of the ‘Coast Protection Act’ has been issued for the proposed development confirming that the development, if lit in accordance with the consent conditions, will not present a hazard to navigation. The LSVIA has taken into account the navigation lighting in terms of both visual and landscape impact.

12.118 The Western Isles Fisherman’s Association was consulted by the applicant at an early stage in the development of the proposal and it confirmed in writing to the applicant that they did not have any objections (attachments in Appendix 11 to the Planning Application).

12.119 The proposed development is to be serviced from a disused slipway and existing Comhairle harbour and will not adversely affect inshore access for recreational uses.

12.120 The proposed farm is located in an area of good flushing away from the mouth of the Obbe river system. There is some acknowledgement that knowledge of salmon

migration routes, sea lice dispersal patterns and sea trout feeding patterns is incomplete and that while some risk may exist it is more likely to be to the sea trout population (due to sea trout remaining around the coast and therefore more vulnerable to local parasite and disease transfer while at sea) during the second year of production cycle when lice numbers tend to be at their highest. However, while the DSFB have asked that this concern be brought to the attention of the Comhairle in their making a decision, they do not consider that the impact will be significant and do not object to the planning application. Marine Scotland Science has stated that ‘the gear attestations, contingency plan for dealing with escape events and strategies for containment are deemed satisfactory as far as can reasonably be foreseen’. They further state that ‘Sea lice chemo-therapeutant modelling indicates that sufficient quantities of Cypermethrin and Deltamethrin could be used to effectively treat sea lice without breaching Environment Quality Standards (EQS). SEPA has granted a licence for the use of the medicines and chemicals required to treat sea-lice. The planning authority is entitled to place due weight on the advice of the statutory consultees. Given their advice and that neither the DSFB or MSS have objected to the proposal, the Comhairle’s planning service having assessed the issue do not consider that the proposed development will adversely impact on angling interests in Harris or North Uist.

SPP – RURAL DEVELOPMENT [PARA 92 – 97] 12.121 The consolidated Scottish Planning Policy on Rural Development states that ‘The planning system has a significant role in supporting sustainable economic growth in rural areas. By taking a positive approach to new development, planning authorities can help to create the right conditions for rural businesses and communities to flourish. The aim should be to enable development in all rural areas which supports prosperous and sustainable communities whilst protecting and enhancing environmental quality’.

12.122 This proposed development is for the cultivation of complementary shellfish and seaweed species alongside the growing of Atlantic Salmon. The applicant states that the proposal was ‘conceived to bring a new type of aquaculture (integrated multi- trophic aquaculture) to the Western Isles’. The development proposals therefore aim to create diversity in aquaculture and contribute to the sustainable development of remoter communities.

12.123 The proposed development is to be serviced out of Berneray and North Uist, utilising an existing shed and slipway and the Comahirle Harbour at Berneray. Communities such as Berneray have limited employment opportunities and new marine based development which makes use of natural and existing built environment resources is compatible with the aspirations to promote rural development which ‘supports prosperous and sustainable communities’.

SPP - ECONOMIC DEVELOPMENT [PARA 45] & FISH FARMING [PARA 104] 12.124 SPP states that ‘The planning system should support economic development in all areas by: taking account of the economic benefits of proposed developments in development plans and development management decisions; promoting development in sustainable locations; supporting development which will provide new employment opportunities and enhance local competiveness’. [para 45] It further states that ‘Aquaculture is a nationally important industry, particularly for coastal and island communities, making an important contribution to the rural economy and providing a significant number of jobs, many in remote locations where alternative employment opportunities are limited.’ [para 104]

12.125 The socio economic benefits of the proposed development are detailed in the application as being 7 direct jobs comprising 6 farm staff and one administrative post with the development being serviced from under-utilised, Comhairle owned harbour at Berneray and the former ferry pier at Otternish, North Uist. In addition, the proposal would generate work for contracted services. Both direct employment and contracted services would result in indirect spend in the local and national economy.

SCOTTISH PLANNING POLICY - FISH FARMING [PARA 105] 12.126 SPP states that ‘Development plans should identify areas which are potentially suitable for new or modified fish farm development and sensitive areas which are unlikely to be appropriate for such development. In potential development areas fish farm development may be appropriate, subject to locational and environmental considerations. Sensitive areas are unlikely to be suitable for fish farm development unless adverse impacts can be adequately mitigated. When designating potential development areas and sensitive areas, planning authorities should take into account carrying capacity, landscape, natural heritage and historic environment interests, potential conflict with other users and other regulatory controlled areas. ...Fish farming framework plans, published as supplementary guidance, can set out a planning authority’s approach to fish farm development in specific areas. Supplementary guidance can also be used to provide advice on how the design of fish farms and associated development can minimise landscape and visual impact.’ [para 105]

12.127 As detailed in the response to Local Plan Policy LP/ED4, the Comhairle does not at present have strategic framework specific to aquaculture to identify preferred locations for fish farms and therefore at present the Development Plan comprising the Western Isles Structure and Local Plan in conjunction with Scottish Planning Policy and material considerations provide the basis against which all planning applications for Marine Fish Farms are assessed. In carrying out the assessment the cumulative impacts of fish farms have been taken into consideration.

12.128 The preparation of Supplementary Guidance on Marine Fish Farming in association with the new Outer Hebrides Local Development Plan (LDP) is currently in preparation. Planning for Aquaculture was identified in the Comhairle’s ‘Main Issues Report’ and a Development Plan Scheme (see concurrent report to the Sustainable Development Committee) sets out the timetable which has been published. The Supplementary Guidance will the subject of consultation and it is through that route that interested parties can input to the future spatial planning of aquaculture development in the Western Isles.

MATERIAL CONSIDERATIONS - COMMENT ON REPRESENTATIONS 13.1 When determining planning applications, the planning authority is required to make their determination in accordance with the provisions of the Development Plan unless material considerations indicate otherwise. While there is no strict definition of a ‘material consideration’, it is accepted that to be ‘material’ a consideration must fairly and reasonably relate to the particular application and serve the purpose of planning i.e. it should be related to the use and development of ‘land’. Where material considerations exist, they require to be identified and analysed. The representations received in connection with this proposal raise some material considerations, as considered below. It is the duty of the planning authority to decide whether any material considerations are of such weight as to indicate that the Development Plan should not be accorded priority. Examples of considerations which are not material include the applicant’s personal circumstances or applicant’s motives.

13.2 As detailed at Section 7 above, there have been many representations on a wide variety of issues in respect of the proposed development. Representations have therefore of necessity been grouped together into topics and have been dealt with in a similar format e.g. general context or information on issue, summary of concerns, a summary of relevant points from the application, advice of consultees and discussion as to their ‘materiality’ in consideration of the application.

LEGAL OBJECTIONS RE EIA (WITH REFERENCE TO PARAGRAPH 7.3 – 7.3.8 ABOVE) 13.3 The requirements of the EIA Regulations are detailed at Paragraph 6.2 above and the EIA process as followed in respect of this application is detailed at Paragraphs 10.5 – 10.10 above. The EIA Screening Assessment and EIA Screening Opinion Decision Notice with reasons were published on the Planning Service on-line portal on the 5 October 2010. The decision of the Planning Authority, having carried out the assessment, was that the development was unlikely to result in ‘significant effects on the environment’ and in those circumstances an Environmental Statement was not required. Following receipt of a petition for Judical Review of that Opinion, the Comhairle requested that Scottish Ministers issue a Screening Direction. The Screening Direction of Scottish Ministers was issued on the 2 March 2011 and stated “Scottish Ministers, having taken into account the criteria in Schedule 3 to the 1999 Regulations, would not be likely to have a significant effect on the environment by virtue of factors such as its nature, size or location…” The EIA Screening Direction of Scottish Ministers was published on the Planning Service on-line portal on the 3 March 2011.

13.4 The Legal objections suggest that the information submitted in respect of the screening request was tantamount to an EIA. The Comhairle’s planning service does not agree with this view. The information submitted in support of the planning application was not presented as an ES and does not follow EIA methodology. The information submitted was sufficient to allow an EIA Screening opinion and determination to be made as to the likely ‘significant environmental effect’. Together with the additional information requested and the advice of consultees, it is considered that the information submitted is sufficient to carry out an assessment of the planning application.

13.5 The Legal objections argue that the exceedence of all quantitive thresholds and the proposal being sited in a sensitive area point towards the need for EIA. However, the Planning Service is of the opinion that thresholds are there to identify developments which require to be subject to the process set out in the EIA Regulations; in the case of Schedule II development, the test being assessment against the Schedule III criteria to determine the likelihood of ‘Significance of Effect’.

13.6 In line with the judgement of the Mellor v Secretary of State for Communities on 30 April 2009, detailed reasons were provided for the Screening Opinion. The planning authority had regard to and placed due weight upon the specialist advice of consultees but carried out its own assessment.

13.7 While shellfish is not identified within the meaning of fish-farming in the EIA Regulations (as amended by the ‘The Town & Country Planning (Marine Fish Farming) (Scotland) Order 2007’), the planning authority took the view that due to its integrated nature in this development that the environmental effects be considered in carrying out the EIA Screening assessment.

13.8 The statutory duty of the local authority in terms of the NSA and in particular the special qualities were taken into account in carrying out the EIA Screening assessment.

13.9 In summary, following the successful legal challenge by Mr Bines, to the Planning Permission granted in February 2010, the Planning Authority on receipt of a new planning application carried out a screening assessment of that application and adopted a fresh EIA Screening Opinion to the effect that an Environmental Statement was not required. The Comhairle’s planning service does not accept that there are good grounds upon which to criticise the EIA screening of this application. Following a legal challenge to the second Screening Opinion, the Scottish Ministers have issued a Screening Direction.

LEGAL OBJECTIONS RE PLANNING APPLICATION (WITH REFERENCE TO PARAGRAPHS 7.4 – 7.4.3 ABOVE) 13.10 The Planning Authority is aware of the Comhairle’s duty under S1 of the Nature Conservation (Scotland) Act 2004 to ‘further the conservation of biodiversity’ and has had regard to that duty in the assessment of the Planning Application – See Paragraphs 12.12 – 12.23 above.

13.11 The points made by objectors in relation to the views expressed by the biodiversity officer relate to the handling of the previous planning permission, (which was quashed following issue of an interlocutor by the Court of Session on account only of inadequate reasons being provided in the related EIA Screening Opinion.) The position of the Biodiversity officer in relation to the current application is what is relevant to the assessment of this case and is set out at Paragraphs 8.63 – 8.66 above.

13.12 The applicant has updated his submission in accordance with the provisions of Part 6 of the Marine Scotland Act 2010 re Conservation of Seals. See 12.94 above.

13.13 Concerns have been expressed as to the potential effects on otters, cetaceans and seals as EPS. Otters and cetaceans are EPS. Seals are not EPS.

13.14 The issue of disturbance and deliberate disturbance to EPS species is addressed in paragraph 12.50 – 12.72 above and 13.104 – 13.113 below.

13.15 Seals are addressed in Paragraphs 12.73 – 12.97 above and in 13.114 – 13.136 below.

13.16 The Comhairle did not rely on the assurances of the developer but sought the independent and expert advice of SNH on the matter of disturbance and significance of impact. Following publication on 20 December 2010 of a SARF Report on the “Assessment of the impacts and utility of acoustic deterrent devices” by SMRU, SNH has provided additional advice set out in Paragraphs 8.60 and 8.61 above on the impact of ADD’s on Cetaceans.

13.17 The conclusion of the planning authority having sought and allocated due weight to the advice of SNH as experts there would be no "deliberate" capturing or killing of otter or cetaceans; otters and cetaceans are unlikely to be significantly affected by the development and any disturbance (through acoustic scaring devices and/or operation of the fish farm) will not affect the favourable conservation status of the species at population level.

EIA & EIA PROCEDURE (WITH REFERENCE TO PARA 7.5 ABOVE) 13.18 The representations cite that the exceedence of all quantitative thresholds and the proposal being sited in a sensitive area point towards the need for EIA. The Planning Authority’s interpretation is that thresholds are there to identify developments which require to be subject to the process set out in the EIA Regulations In the case of a Schedule II development, the test being assessment against the Schedule III criteria to determine the likelihood of ‘Significance of Effect’. The Comhairle has adhered to the requirements of the EIA Regulations and the Planning Service does not accept that there has been a failing of the Comhairle’s legal duty in this connection.

13.19 There is no significant impact on the NSA, scenery or wildlife that dictate the requirement for an EIA. The decision to not require EIA does not create a situation where there will be inevitable culling of seals. Seals cannot be shot without the appropriate Licence and the number and justification/reasons for shooting any seal must meet the terms of the Licence.

13.21 Representations cite that the Comhairle is duty bound to insist on EIA under the terms of the Marine Scotland Act 2010. This Act does not stipulate a need for EIA. Others state that a Strategic Environmental Assessment (SEA) should be carried out. SEA is a process to ensure that significant environmental effects arising from policies, plans and programmes are identified, assessed, mitigated, etc. SEA is not required for individual planning applications.

13.22 Many who submitted representations in this regard stated that the baseline data on which assessment of significance was based was either flawed or too old to give a true picture and that in these circumstances detailed surveys should have been carried out by the developer e.g. seal haul out and pupping locations, cormorant numbers and nesting sites, location, frequency, number and type of cetacean using the Sound and the Minch, otter holts and foraging areas as well as impact on landscape, pollution, and wild salmonid populations.

13.23 The applicant’s submission comprises, where available, published baseline data e.g. seal counts per SMRU independent data and Seabird 2000 data. Seabed data was obtained via survey. Otters were identified as breeding and resting ashore on the adjacent islands. Cetaceans presence was noted from published sources only, but their presence acknowledged by the applicant, SNH and parties submitting representations as being present in the general area. Otters are known to have holts in Groay and Lingay but these are ashore and outwith the range where they might be directly disturbed by the fish farm cages or fish farm traffic. In addition to this, otters are known to co-exist with marine fish farms in the Western Isles. Information was provided in the application (from published sources) on numbers and behaviour of both grey and common seals. Specific details on haul out sites was not provided, but SNH did not request, as they are entitled to do so, any further information or additional surveys in order to reach a view on the likely impacts locally or at population level.

13.24 There is no published data on the number, frequency or habits of cetaceans and other sea mammals in the vicinity of the fish farm. SNH has confirmed that it does not hold data on cetaceans. They state “We do see the species whilst carrying out other work and do get occasional reports from the public. The species mentioned above [bottlenose dolphins, common dolphins, harbour porpoises and minkie whales] are reported/seen from around the coastline throughout the Western Isles and the use of ADD’s at all the other existing fishfarms does not appear to be significantly disturbing these cetaceans from using the area. This fits with the findings of the above report [SARF Report - Assessment of the Impacts and utility of acoustic deterrent devices – 20 December 2010 by SMRU] on ADD’s in the Sound of Mull and why we are of the opinion that the use of triggered ADDs at Groay-Lingay is unlikely to cause significant long terms disturbance to the cetaceans using the area of deeper water adjacent to the fish farm site or those travelling along the coastline.” The presence of the proposed farm itself is unlikely to have a significant effect on cetaceans or other marine mammals; SNH’s advice is that an adverse impact on cetaceans is unlikely from the use of ADD’s as a non lethal seal anti-predation device.

IMPACT ON AND INTERACTIONS WITH WILD SALMONID (WITH REFERENCE TO PARAGRAPH 7.6 ABOVE) 13.25 Atlantic salmon (Salmo salar L) is a migratory fish found in several hundred rivers in the UK. In freshwater only, it is an EU Habitats Directive Annex II species. Spawning takes place in clean rivers and streams where the water flows swiftly. After a period of 1-4 years the young salmon migrate downstream to the sea as 'smolts'. After 1-3 years in the sea, adult Salmon return to spawn in the river of their birth. The homing instinct and behavior of Atlantic salmon has resulted in the formation of genetically distinct stocks peculiar to individual rivers.

13.26 Sea trout are a form of brown trout (Salmo trutta) that have undergone a form of ‘smoltification’ so that like Atlantic salmon it migrates to the sea to feed and grow before returning to fresh water to spawn. However, unlike Atlantic salmon, it does not migrate to far off feeding grounds, but instead utilises coastal areas in the near vicinity of the fresh water river. Sea trout was added to the UK Biodiversity Action Plan Priority Species List in 2007.

13.27 Concerns on the environmental impact of the proposed farm on wild fish species have been expressed by third parties (refer to Section 5.6) but can broadly be summarised as follows: • The site sits astride the main salmon and sea trout migratory routes/runs from the Obbe system and populations migrating from the system and from the Atlantic through the Sound of Harris will potentially pass the proposed farm site. • Salmon or trout passing or trout feeding in the coastal areas of the Sound may pick up sea lice which have fallen from farmed salmon. • Sea lice will weaken and/or kill the wild fish, and leading to diminishment of genetic populations. • Exposed location of site and containment failure are likely to lead to high numbers of escapees • Genetically inferior escapees will breed with wild fish resulting in inferior stock. • The water environment will be polluted by effluent and chemicals from the proposed farm affecting the quantity and quality of fish returning to the Obbe system.

13.28 The planning application addresses the issues of fish health, lice treatment and containment in the following sections: • Appendix 6 - Proposed environmental management system (6(6), 6(8) and 6(10)) has set out a Disease and Parasite management plan, Sea lice management strategy, and plan for dealing with escapees. • Appendix 5 sets out the medicines and chemicals licensed for use on the site in order to manage farmed fish health and treat sea-lice. Following a request from the DSFB some further information on sea-lice management (including some further justification of current and wind effects on sea-lice movement), treatment cycle and management areas were provided and subsequently considered by the DSFB. • Appendix 10 to the application contains statements on the structural integrity of cages (warranty on use for significant wave height of 2.2m, a net specification beyond Scottish industry standard and moorings manufactured from certified components and designed to meet environmental conditions at the site). • Appendix 3 (Nutrients) Appendix 4 (Hydrographics and Modelling) Appendix 5 (Medicines and Chemicals) deals with the inputs and outputs to the marine habitat in terms of chemo-therapeutants used to treat sea lice and the addendum to Appendix 8 (notes on bi-valve production and their wastes), the waste from the farming of shellfish and co-culture of shellfish. 13.29 The detailed advice of the DSFB on wild fish and MSS (on fish health, wild fish sealice, containment, and environment) can be found at Paragraphs 8.3 and 8.4–8.16 above. In summary, the DSFB advises ‘We do not object to this planning application. We note the location of this fish farm outside of sea lochs and the developer’s commitment to running the site according to AMA principles... Despite best practice measures a new fish farm site has the potential to impact salmon and sea trout migrating from the North Uist and South Harris river systems and sea trout that feed in the area. We request that this is considered by the Comhairle when coming to their decision.

13.30 In summary MSS advises that: ‘The location of the proposed site is relatively remote from any of the major Atlantic salmon and sea trout fisheries in the Western Isles, the closest being located some 8 km north of the site at Leverburgh

An-t-Ob... There is evidence of an effect of lice from fish farms on sea trout, although the extent to which the fish populations are affected is not clear. It appears that the range of effect of lice is at least 14km from farm source. This range will depend on both movements of lice and trout, which are not well understood. There is no published evidence of an effect of lice on trout at a population level, however, such an effect would be expected in view of the high infestation intensities observed near farms in the second years of salmon production cycles. …The site is situated where there is likely to be good flushing and the prevailing winds and currents through the Sound of Harris would tend to drift any infective stages of sea lice that may be produced by the site, away from the coastline and river/burn mouths. The proposed site would appear to be sheltered from most directions, reducing the likelihood of weather linked damage.’

13.31 Following a request for clarification on the availability and practicality of collecting data on migration routes in the Sound of Harris and ability to treat sea-lice, MSS advised ‘Information on the dynamics of migrating salmonid fish in the area is not at present available. In order to gather such information a major research project would have to be instigated and I cannot see how it would be possible for the developer to carry out such a project... Treatment times (for sea-lice) provided by the applicant for Cypermethrin and Deltamethrin were at a rate that would allow the entire site to be treated within 4 days. Information was also provided for the in-feed treatment emamectin benzoate. ...The applicant lists four sea lice treatment chemicals and state that they can be used on a rotational basis to assist with combating development of resistance to treatment.’ 13.32 There is acknowledgement by both consultees and some of the parties submitting representations that the migratory routes of salmonids through the Sound of Harris and the movements of and feeding areas of sea trout populations and sea-lice are not well understood and that they may or may not include the location of the proposed farm. The situation is not unique to this proposed site. It is acknowledged that any increase in new sites increases the number of sea-lice in the water and in turn potentially increases risk to wild populations passing through those water.

13.33 Following a request by the DSFB, the applicant, submitted further notes on sea-lice management which demonstrate net movement of water borne lice in a North East to South east direction i.e. away from the coastline. There is also acknowledgement that farms located outwith sea-lochs some distance away from the mouths of rivers and present less risk of sea-lice damage to wild salmonids. This proposed farm location is acknowledged to fall into this category. In terms of risk assessment the proposed location of the farm, tidal movements, flushing levels and the prevailing wind indicate dispersal away from the wild fishery and therefore a lower risk; hence the assessment by consultees and the planning service as unlikely to have ‘significant effects’. SEPA has confirmed that it is satisfied with the modelling in Appendices 3, 4 and 5. The modelling (discussed further below) demonstrates that the proposed farm would not lead to the possible eutrophication of the waters in the Sound of Harris and that chemical inputs/outputs will not exceed environmental limits and therefore is not detrimental to the aquatic habitat of the wild fish. Risks of containment failure are discussed in Paragraphs 13.81–13.88 below.

13.34 The Planning Authority is entitled to place due weight on the advice of the statutory consultees. Given their advice, and that neither have objected to the proposal, the Comhairle’s planning service having assessed the application, advice and representations are of the view that on balance these considerations, while material, do not merit refusal of this particular application.

POLLUTION, WASTE, WATER COLUMN, BENTHIC AND BENTHIC BIODIVERSITY IMPACTS (WITH REFERENCE TO PARAGRAPH 7.7 ABOVE) 13.35 Development interacts with the environment and has the potential to generate waste and or pollution during construction, operation and de-commissioning. Waste during construction and de-commissioning relate to the components of the installation. These tend to be pre-fabricated, delivered to site and installed by specialist; site re- instatement conditions are imposed on any consent to address de-commissioning. However the main concerns intimated by those objecting relate to the waste and pollutants potentially generated during the operation of the proposed farm. This takes the form of inputs and outputs to the farming process, residual waste, characteristics of the receiving environment and the resultant impacts.

13.36 The concerns of third parties can be summarised as follows: • Inputs in the form of: commercial feed (containing phosphates, nitrates and steroidal hormone growth enhancers, anti fungal treatments and colourants); Lice treatment, chemicals and other pesticides (potentially neuro toxic, containing organophosphates). • Outputs in the form of: untreated faecal waste, nutrients (nitrates), uneaten food, mortalities. • Residual waste in the form of plastic bags, ropes buoys etc. • Receiving environment: currently a wholly undeveloped pristine marine environment; Live diverse benthic community – fish, invertebrates, crustaceans, seaweed kelp and algae, in particular coastal seaweed; Hydrography limitations (depth, average current speed, flushing) i.e. Proposed farm located over an 18m hollow shallowing to 13m; only 3-5m depth between bottom of nets and floor of sea-bed at mean low water spring, even lower with cones (to catch mortalities); not deep enough over a large enough area to accommodate twenty cage structures each of 24sq m and 10m net depth; Will dry on drying reef shown on chart; relatively enclosed by islands (Gilsey, Groay, Lingay) and reefs affecting dispersal and free flushing; High stocking density of farmed fish. • Impacts: on benthic environment and benthic communities: will lead to anoxic conditions on the seabed; enrichment of water column through release of nutrients causing accelerated growth of algae and higher forms of plant life; disturbance to the balance of organisms at the site; hydrographical conditions will not allow dispersal of toxins sufficiently; Poor dispersion/lack of water exchange sinking into the hollow build up and accumulation of chemicals, faeces and waste feedstuffs; neuro-toxin chemicals will affect existing marine life, particularly the crustacean populations; adverse impact on biodiversity in vicinity of site; endocrine disruption, pollution of food-chain - food foraged by seals, otters, cormorants, and other sea-life; seaweed in inter-tidal zone with resultant impact on sheep who graze on seaweed on Groay and around the coast. Uneaten food drifts off in the currents, attracting wild fish species and their predators to the area; negative impact on wildlife and biodiversity; one tonne of faeces (contaminated with antibiotics and other medicines) will be deposited on the sea bed on a daily basis; adverse effect on the micro-organisms and zoo-plankton, damaging the sedimentary layers and causing a break down in the marine food chain; the worst disease & pollution is found in shallow fjords (less than 15m; 30m-50m depth is ideal); will contaminate the proposed adjoining shellfish farm area, rendering shellfish unfit for human consumption. • Fig.6 is incorrect, - applicant should be asked to represent it correctly. • Rubbish/litter, especially items that can be mistaken for prey, cause mortalities in a wide range of marine species. 13.37 The planning application addresses these issues in the following sections:

• Appendix 3 - models nitrogen release, (from waste feed, faeces and excreted ammonium) and nitrogen dispersal in open coast waters using residual current for the site at a maximum predicted bio-mass of 1522 tons. • Appendix 4 comprises a Hydro-graphic report for the proposed site as well as the results of modelling, benthic grab and video surveys. • Appendix 5 contains the Data sheets for the medicines and chemical proposed for use to treat fish on the proposed farm. • Appendix 6 – contains the Proposed Environmental Management system which deals at Section 5 with mortalities and at 6,7 and 8 with Disease and parasite management, medicines and chemicals and sealice. • Appendix 8 (additional information) with the wastes from shellfish.

13.38 The comments of SEPA and MSS (on environment) can be found at Paragraphs 8.2 and 8.14 above.

13.39 In summary, SEPA advised that they had no objection to the planning application and that a CAR Licence was granted for the development in January 2010. Through CAR, SEPA control the maximum biomass and discharges of licensed medicines. Following representations raising concerns about the hydrographic data, including the depth of the site and receipt of an amendment to Appendix 2 – Fig 6 (Section A-A) and further representation, SEPA advised that it ‘was satisfied that the hydrographic data submitted in support of the CAR application is valid and the model has been correctly run and as such is confident that the conditions on the CAR licence are derived in a manner that is consistent with our guidance and procedures.’ They further advised that should the applicant wish to alter the net depth (and retain the stocking density) then they would need to re-run the model and apply to amend the CAR licence accordingly. They went on to say that they see no reason why an amendment to cage depth would not be licensed albeit the conditions on the licence may change.

13.40 MSS advised that ‘From the information given in the application, the operation of the sites will be at an acceptable stocking density level of below 22kg/m3, given a minimum net depth of 8m.’ They further advise that in terms of environmental impact: ‘The environmental information submitted in support of this application covers all the areas we are concerned with from an environmental perspective. • Benthic impact modelling appears to have been adequately undertaken and shows that..., organic loading to the seabed will be at low intensity with impacts over a relatively small area. • Sea lice chemo-therapeutant modelling, indicates that sufficient quantities of Cypermethrin and Deltamethrin could be used to effectively treat sea lice without breaching EQS. • Nutrient modelling indicates that levels of nutrient enhancement in the Sound of Harris arising from discharges at this site will not cause us concern.’

13.41 SEPA and Marine Scotland have carried out an assessment of the modelling data submitted by the applicant and SEPA has granted a CAR licence. Appendix 4 contains the Benthic Report which includes survey details, methods, dates, sample positions (a survey of physicochemical characteristics and infaunal communities of the benthos conducted on 26 & 27/01/09) and confirms that methods used were as described in the SEPA Fish Farm Manual, specifically for Extended Baseline Surveys.

13.42 Sediment samples were collected from the seven stations. Page 49, Appendix 4, contains the conclusions as follows: ‘Visual analysis of all stations was of yellow/grey sand with shell. No noxious odour was apparent at any station. Sediment composition was found to be mainly sand (77-85%)... The percentage of organic material across all stations was low e.g. < 4.3%. Redox profiles at all station reduced with depth from surface… A diverse faunal community was seen...and a high number of species were present in moderate abundance. ...scores classed infaunal communities as ‘normal’...’.

13.43 Page 78, Appendix 4 records the findings of a pre-development Benthic Video Survey. It states that – Sediment type was similar throughout ...and consisted of sand with shell. …the benthic grab samples taken at the site, showed that fine shell content to be approximately 30% of the grab sample. …However, in both transects, species richness was very low and the habitat was homogeneous in nature across the survey area and no sensitive biotopes were observed.

13.44 The modelling in Appendix 3 concluded that the proposed farm inputs and outputs would be unlikely to constitute a major factor in the eutrophication of the waters of the Sound of Harris. A current and weather station were deployed at the site to aid calculation of residual current direction and speed. Some further information on prevailing weather is provided in Figure 2 of the additional notes on Sealice Management. The wind strength and direction are in this case based for windrose at Benbecula Airport and North Lewis (Jan 86 – Dec 95) and demonstrate prevailing weather direction over a period of years).

13.45 The extracts referred to above indicate that through survey, industry standard laboratory analysis and computer modelling that discharges are within acceptable environmental levels, that the benthic habitat and biodiversity is not species rich, and did not contain sensitive bio-topes and that while there is a living benthic community it is not one that raises conservation concerns.

13.46 The Comhairle’s planning service has sought the specialist advice of SEPA, Marine Science Scotland and SNH. The hydrographical limitations have been considered by SEPA and their advice is that they are satisfied with the modelling and that concerns re net depth versus sea-depth can if necessary be addressed by re-modelling the site for shorter net depth with a change to CAR licence. They also state that they see no reason why an amended licence would not be granted.

13.47 Dispersal and flushing have been considered by the consultees and the advice is that the site conditions are acceptable and can accommodate the stocking density proposed.

13.48 There are many concerns expressed re contamination of the marine environment (plant life, micro-organisms, zoo-plankton), marine mammals, fish, shellfish, algae with chemicals, antibiotics and in turn causing either a break-down in the marine food-chain and/or entering the food chain of humans (through fish, shellfish and lamb from sheep grazing on the seaweed around the coastlines).

13.49 While these concerns are noted, they are a spectrum of concerns, peculiar to concerns about the aquaculture industry as a whole and not borne out by the information presented in the application or validated by the specialist consultees. As the benthic communities are not of conservation concern and the inputs and outputs to the farming process are assessed to be within environmental limits, the Comhairle’s planning service does not find these concerns merit refusal of the application.

13.50 Marine Scotland Science was consulted on the issue of site depth and agree that shallow, high energy sites are more prone to disease as the stock are being reared in more stressful conditions and increased stress can make the fish more prone to disease. However, they go on to say that it is the management and husbandry of the fish that are the most significant factors in determining the impact of any viral challenge.

13.51 The fitness for human consumption of shellfish is not a planning matter and is regulated by others – The Food Standards Agency (Standards) and Environmental Health (Classification and monitoring).

13.52 The generic issues of waste and litter in the Marine Environment and resultant mortalities are real but this is a global problem that goes far beyond the consideration of this particular application. Farms require to have an environmental management system and the planning authority can and has in this case imposed site re- instatement conditions. The Comhairle’s planning service is satisfied that the fish farm has been adequately designed and that the responsible and appropriate environmental management systems will be in place prior to operation.

NATURAL HERITAGE STATUS - LANDSCAPE & VISUAL IMPACT OF THE DEVELOPMENT (WITH REFERENCE TO PARAGRAPH 7.8 ABOVE). 13.53 The application site falls within the Sound of Harris which forms part of the South Lewis, Harris and North Uist National Scenic Area.

13.54 Representations have been received expressing a range of concerns including the status of and impact on a designated NSA; perceived failings by CnES and SNH in the statutory duty under s.263A of the 1997 Act (‘safeguarding or enhancing the character or appearance’ of the NSA); likely to have a detrimental visual impact (proposed farm in view from Kyles to Borrisdale, South Harris, and the Berneray - Leverburgh ferry for 1.5km; photomontages (car-deck level) as opposed to passenger deck level (circa 6m above sea-level) seriously misleading, i.e. indicating farm will be partly obscured by Vatem and other reefs thereby minimising the visual impact; proposed farm will be much more intrusive than suggested; safety lighting and buoyage more intrusive than suggested); likely to have a detrimental landscape impact (fish-farm being an inappropriate ‘kind of development in an NSA’; blot on the landscape; area of unrivalled beauty, scenery and remoteness; pristine condition with no development; hitherto unspoilt part of the NSA. Impact massive and probably irreversible; devastation of coastline; introduction of large man-made structures and accessories).

13.55 As noted at Paragraphs 12.28– 12.46 above, the planning application includes Appendix 9 – Presentation of Visual Appearance of Proposed Development, and further information requested by the planning authority in the form of a ‘Land and Seascape Visual Impact Assessment’ (LSVIA). The LSVIA looks at both the impact on Landscape i.e. ‘Change in the fabric, character, and quality of the land and seascape as a result of a development’ and Visual impact i.e. the ‘Effects on people, of the changes in available views, through intrusion or obstruction’.

13.56 The advice of SNH on landscape is set out in paragraphs 8.32 above. In response to Structure Plan Policy RM9 and SPP the impacts of the development on the NSA are analysed and discussed under paragraphs 12.28 – 12.46 above.

13.57 The Sound of Harris is not in itself an NSA but it forms part of the South Lewis, Harris and North Uist, National Scenic Area (NSA). The application area and its immediate environs are therefore sited within an NSA landscape designation, but do not carry any inter-national, other national or local landscape designation.

13.58 Through consideration of the ‘Special Qualities’ of the NSA as provided by SNH, ‘special attention’ has been paid to the desirability of safeguarding or enhancing the character or appearance’ of the NSA in the assessment of the proposed development. The NSA designation does not preclude development of any kind but requires that special attention be paid to the desirability to safeguard or enhance the NSA in assessing proposals for development.

13.59 The impacts on the landscape have already been discussed above with special attention paid to the special qualities. The Sound is without question a beautiful landscape but it is not an undeveloped sterile landscape – it is a ‘working landscape’; a navigational channel frequented by a variety of craft, commercial, leisure and work- boats and the ferry which runs four return trips in the Summer and two in the Winter between Berneray and Leverburgh.

13.60 The proposed fish farm will be to a large degree either screened or set against the backdrop of landform with absorption capacity. The existing navigation lighting is prominent and forms part of that landscape and the addition of navigation lighting at the proposed farm (range 2 nautical miles) will not alter the character or have a significant adverse landscape impact. It is acknowledged that the farm will lead to a change in the sea-scape and visual impact in the immediate area of the proposed farm. However, that impact is localised and while the concerns can be appreciated, it is considered not to detract from the landscape of the NSA as a whole and would not justify refusal of the application. In carrying out their assessment, the Comhairle meets its obligations under the 1997 Act to safeguard the character and appearance of the NSA in its consideration of the development.

13.61 The visual presentation submitted with the planning application is acknowledged as having limitations. At the request of the planning authority, a LSVIA was submitted in order to aid more detailed assessment of the visual impact for the purposes of the planning application. The Comhairle’s planning service also carried out a site visit, by an independent charter craft, in fair weather and in conditions of good visibility.

13.62 The views of the proposed farm from Strond and Borrisdale are at a distance of 4-5km. In mid to low tide conditions the proposed farm will be largely screened from view from these villages, by islets and reefs. At extreme high tide (when reefs are under water) and in good light conditions it may be possible to see some of the farm infrastructure from the shore albeit at a distance. While that is a change in the view from the village, its changing frequency according to tide, weather and light conditions and at the distance noted, is unlikely to be significant. The proposed farm would be in view of ferry passengers for about 15-20 mins. of the one hour journey, and again more visible at high tide. The question is whether that transient view in that location is of such detriment that it would justify refusal of the planning application. The advice of SNH who are familiar with the views of the Groay-Lingay islands from the Sound of Harris ferry, coupled with the Development Department’s own visual assessment of the site has led the planning service to conclude that, while visible, the view of the proposed farm is not considered of such detriment that it would justify refusal of the planning application. Other view points from within the Sound are generally low lying, and despite the limitations of the montages are again considered to be such that they do not merit refusal of the application.

NOISE & LIGHT POLLUTION AND NUISANCE (WITH REFERENCE TO PARAGRAPH 7.9 ABOVE) 13.63 The main aspects of nuisance likely to arise from the development are light and noise from the automated feeders, feed barge, boat engines, harvesting pumps and occasional use of generators, compressors etc.

13.64 Navigation lighting would be visible at 2 nautical miles but is of no significance in the context of extensive navigational lighting existing in the Sound of Harris. Lighting from boats, operations on site are condition to the effect that light spill is contained and lights switched off when not required for the purpose for which they were installed. Lighting is therefore unlikely to adversely impact upon receptors.

13.65 Existing fishing boats and commercial traffic in the Sound generate similar engine noise and in all but very still weather noise will be naturally mitigated by background noise levels from sea and weather.

13.66 The proposed development is remote from housing and centres of human population. Some concern has been expressed that noise from automated feeders, feed barge, boat engines, harvesting pumps etc are likely to impact on sensitive species e.g. cormorants, seals, cetaceans and otters. These species are likely to habituate to the level of noise this equipment will generate and considered unlikely to constitute a nuisance to either human or wildlife populations.

NAVIGATION AND ANCHORAGE (WITH REFERENCE TO PARAGRAPH 7.10 ABOVE) 13.67 The wider issues related to navigation and anchorage has already been addressed in above. The specific representation re access to Groay by landing craft is difficult to substantiate given that the charted anchorage is on the west side of the proposed farm, was protected in the siting of the farm and by the conditions of the Section 34 Consent. There is therefore a clear channel between the farm and Groay.

SOCIO ECONOMIC IMPACT (WITH REFERENCE TO PARAGRAPH 7.11 ABOVE) 13.68 The Western Isles economy is reliant on the public sector and characterised by a large number of small enterprises and a small number of key private sector employers. A range of economic challenges affect the islands, due to peripherality, insularity and sparseness of population. (Source: HIE)

13.69 SPP states that ‘The planning system should support economic development in all areas by: taking account of the economic benefits of proposed developments in development plans and development management decisions; promoting development in sustainable locations…;supporting development which will provide new employment opportunities and enhance local competiveness’. [para 45]

13.70 Public representations are summarised in Section 7.11 but mainly cite: • Adverse impact on the tourism industry (arising from the detriment of the proposed development on landscape, beauty, scenery, peace and quiet, wildlife and wildlife habitats, and clean waters and beaches all features that under-pin the Western Isles tourist industry). • Adverse impact on angling revenue (arising from damage to wild fisheries). • Consequential impacts in the form of loss of bed-nights and revenue to hotels, guest houses, B&Bs, restaurants, cafes, shops, and a large number of arts and crafts businesses. • At the extreme, concerns that the proposed development could irrevocably damage tourism in Harris and the Western Isles with loss of jobs and disastrous consequences for the local economy.

13.71 The application cites the creation of 7 direct jobs comprising 6 farm staff and one administrative post and further comments from the applicant state that further work will be created in contracted services. The applicant has subsequently stated that the Groay-Lingay development was conceived to bring a new type of aquaculture (integrated multi-trophic aquaculture) to the Western Isles and to focus its servicing from North Uist and Berneray. The process was hoped to ...create new year-round work opportunities to the area, as well as associated projects in food processing, marine hatchery and scientific support. [The developer has] a long term plan to see [the] local area develop into a successful aquaculture area, which challenges the traditional models and ...to retain those who wish to work with the sea.

13.72 Paragraphs 12.24 – 12.106 above address the environmental impact of the proposed development on landscape, visual impact, beauty scenery, wildlife, wildlife habitats. This section therefore deals with the economic impacts that may indirectly arise.

13.73 It has been concluded that the proposed development does not have an adverse landscape impact.

13.74 In terms of visual impact it has been concluded that any adverse impact will be experienced by persons in close proximity to the farm e.g. from the passing ferry or smaller craft.

13.75 In a local context it is noted that three of the main ferry route approaches into the Western Isles, East Loch Tarbert, Lochmaddy and Lochboisdale are sea-lochs where larger scale marine fish farms are sited and clearly visible to ferry passengers. There is no substantiated evidence that the visual impact of these installations has affected ferry passengers desire to visit the islands or damaged tourism at local or Western Isles level. In support of this view is a Scottish Aquaculture Research Forum (SARF) report (2009) on the findings of a case study on the impact of fish farming on tourism. The research carried out in three areas including the Western Isles found that the tourism industry as a whole was not adversely impacted upon by the visual impact or presence of fish farms.

13.76 The visual experience of those on small pleasure boats or marine tour boats or visiting the Groay – Lingay islands is likely to be greater. While not to under-estimate the value of that tourist experience or that of the livelihood of operators there is no hard evidence to prove that this particular proposed fish farm would remove marine and wildlife tourism experiences in Harris, reduce tourist numbers and lead to a loss of jobs.

13.77 The input and output wastes from the proposed farm will have a localised impact as demonstrated by benthic modelling, nutrient calculations and shellfish impacts (Appendix 3, 4 5 and addendum to Appendix 8). The currents, flushing and location of the fish farm remote from mainland shores is such that it will not adversely affect water quality or impact on recreational beaches.

13.78 The impact of fish farms on the revenue generated from anglers is another concern cited by contributors. The issue of interaction with and environmental impact on wild salmonid populations is addressed in paragraphs 13.24 - 13.34 above. There is no substantiated evidence that this proposed farm will adversely impact upon wild salmonids and therefore, in turn, angling and angling related jobs.

13.79 The value of the natural resources and natural environment of the Western Isles to the tourism industry is not in doubt. However, the natural environment also has a key role in supporting other sectors such as agriculture, fishing, and aquaculture (primarily food producing sectors), which generate exports from the Western Isles an essential to balance high imports thereby improving sustainability.

13.80 This proposed development is for ‘Integrated multi-trophic aquaculture’ (sIMTA) and is a new development in commercial aquaculture in Scotland. sIMTA has the potential to improve the water column and benthic impacts of finfish farming by reducing nutrient enhancement. This approach while new to Scotland (is practiced in other parts of the world); It has the potential to increase sustainability in the aquaculture sector. The operation offers 7 direct jobs, work in contracted services and if successful, potentially in the medium term, new research and development opportunities in the Western Isles.

13.81 While representations cite the development as having many adverse and cumulative socio economic impacts, it is considered that there is no substantive evidence to support the views expressed and therefore these concerns do not merit refusal of the application.

LOCATION & CONTAINMENT (WITH REFERENCE TO PARAGRAPH 7.12 ABOVE) 13.82 Representations cite the lack of a site specific wind and wave climate analysis to back up the equipment attestations. The site has shelter from most directions but is partly exposed to the E and to the NW.

13.83 Figure 1 of Appendix 10 (structural integrity of cage structures, nets and moorings) while independently produced for a site in the east of Lochmaddy does take in the Groay - Lingay Islands and shows the significant wave height and mean wave direction for a 1:50 year return period storm from 150 degrees in the Sea of the Hebrides at less than 2m. The diagram is not orientated in a northerly direction but the map of the Uists and southern part of the Sound and the significant wave height pertaining to the area is clear. The cages specified are guaranteed to 2.2m significant wave height.. The significant wave height is defined as the mean height of the highest third of the waves. The maximum wave height in a 1 in 50 year return period event will be higher than the significant wave height. 13.84 MSS has advised that the equipment attestations provided, together with information on remote technologies, deems the location satisfactory as far as can be reasonably foreseen. 13.85 Containment is addressed in the application in Appendix 6 – Section 1 and 10. 13.86 MSS has advised ‘Strategies and equipment proposed for use to minimise predator interactions are satisfactory. The contingency plan for dealing with escape events and strategies for containment are also deemed satisfactory as far as can be reasonably foreseen’. 13.87 Access to the site in poor weather conditions is primarily a matter addressed by The Aquatic Animal Health (Scotland) Regulations 2009 which requires the authorisation of all Aquaculture Production Businesses (APB's). The authorisation procedure is undertaken on behalf of the Scottish Ministers by the Fish Health Inspectorate (FHI) based at the Marine Scotland, Marine Laboratory in Aberdeen. (See para 10.6 and 10.7 above)

13.88 Containment and parasite (sea lice) control is regulated by Marine Scotland under the terms of ‘The Aquaculture and Fisheries (Scotland) Act 2007’. (See Section 6.9 above.

13.89 MSS has been consulted and has advised that they are satisfied with the operating proposals submitted.

OPERATIONAL ISSUES (WITH REFERENCE TO PARAGRAPH 7.13 ABOVE) 13.90 Representations cite the lack of a formalised Environmental Management System, Fish escape history of the industry, Risk of merging Disease Management areas, (established to control spread of ISA), Risk of more virulent strain of Pancreatic Disease (PD) crossing from Uist Management area to Lewis and Harris, shallow high energy sites and square cages such as that proposed being more prone to PD; and erosion of fire-break increasing risk of sea-lice transfer between farms.

13.91 As for containment, these are matters regulated by legislation other than planning and therefore fall primarily within the remit of others.

13.92 Notwithstanding this, these representations raise serious considerations for the industry, economy and sustainable development of the Western Isles and therefore merit further consideration.

13.93 These representations were put to the applicant who responded with views backed up by scientific literature. Both the representations and the applicant’s response were subsequently sent to MSS for an independent view. MSS advised as follows:

13.94 ‘The establishment and operation of the proposed new fish farm at Groay, Lingay will extend management area 5c, as currently defined in Marine Scotland management area maps. Please see attached map which shows a projection of how the zone will extend if the proposed site was active. Although 5c has extended, a firebreak still remains between the E North Uist management area (5c) and the SE Lewis & E Harris management area (5b).” ... “Marine Scotland Science is aware of the limitations of the management area maps for use in controlling sea lice, currently a gap of at least two tidal excursions between each distinct management area. However, A Code of Good Practice for Scottish Finfish Aquaculture section 3.5.1.1 allows for operators to redefine management areas and develop management plans for these areas should the operators of any management area be aware of any documented evidence or experience that shows the risks to farmed and wild fish health within the area are materially increased by operating to the management area as currently defined.’

13.95 ‘Pancreas Disease - MHS may have anecdotal evidence to suggest that the Groay, Lingay area is particularly pre disposed to Pancreas Disease and that the pen type also has an impact on this. However, we’re unaware of any published data that shows an increased risk of Pancreas Disease in different holding facilities or this area’… ‘We would agree that shallow, high energy sites are more prone to disease as the stock are being reared in more stressful conditions and increased stress can make the fish more prone to disease. However, as the applicant states in his response the management and husbandry of the fish are the most significant factors in determining the impact of any viral challenge.’

13.96 In so far as the proposed environmental management system is concerned this again is a matter that would be dealt with by Marine Scotland under the authorisation of Aquaculture Production Businesses in terms of the Aquatic Animal Health (Scotland) Regulations 2009, prior to establishment of the proposed site.

13.97 Marine Science Scotland has considered these representations carefully and no further scientific or published evidence has been submitted in support of the representations on Pancreatic disease. MSS has within the acknowledged limitations of the Management Area Maps, not raised any objection to the location and added weight to the applicant’s statement on the importance of management and husbandry of the fish are the most significant factors in determining the impact of any viral challenge. These concerns have therefore been carefully considered.

NATURE AND SCALE OF DEVELOPMENT (WITH REFERENCE TO PARAGRAPH 7.14 ABOVE) 13.98 Representation on this issue primarily relate to sIMTA being experimental, industrial scale of fish farm, lack of space on shore for storage facilities, and cost implications to the Comhairle of future development proposals e.g. Sound of Harris Causeway.

13.99 In recent years consolidation of the industry has led to larger sites in deeper waters with higher welfare standards. The scale of the development is not dissimilar to many of the finfish farms which have been the subject of applications and consents in the Western Isles in recent years. It is acknowledged that the long-lines running parallel to the main axis of the fin fish cages will add to the scale of the development. However, the long-lines are being used to grow shellfish and seaweed species which are understood to reduce the environmental impact of the discharges from the fin-fish farm. The application has been assessed in terms of the ability of landscape absorption and SNH has confirmed that the development has been assessed as not having a significant adverse impact on the NSA.

13.100 On-shore facilities do not form part of the current application but the applicant has cited two bases, the Comhairle Harbour at Berneray which is under-utilised and the former passenger ferry slipway at Otternish on North Uist (which is at the end of a road and largely screened from public view). There is therefore considered to be adequate space available for shore based storage and activities.

13.101 Impact of the proposed fish farm on future potential developments is not a matter that can be taken into account in assessing the current application. The Western Isles Structure Plan (under Transportation Proposals) committed to supporting feasibility studies to investigate the potential for a fixed link across the Sound of Harris. However there is no known commitment beyond this feasibility work at the present time.

13.102 These concerns above therefore do not merit refusal of the application.

CULTURAL HERITAGE (WITH REFERENCE TO PARAGRAPH 7.15 ABOVE) 13.103 The owner of Lingay has cited the discovery of a large rock formation in the shape of a crucifix, which is thought to be a significant historical feature on the Island. The Comhairle’s Archaeologist has been consulted and advised that ‘…when features are enhanced for a more ritualistic reason they usually point to a significant feature on the landscape, I have checked what we know about early Christianity on the Islands facing Lingay and the majority of the sites are prehistoric, Norse and Post Medieval... I believe that this natural feature has been augmented for a practical reason, not a religious one and is not significant enough to warrant refusal on archaeological grounds.’

13.104 Both Historic Scotland and the Comhairle’s archaeologist have been consulted. Neither considers that there are archaeological issues that merit refusal of the application.

SPECIES OF CONSERVATION CONCERN AND IMPACTS (WITH REFERENCE TO PARAGRAPH 7.16 ABOVE). 13.105 A large number of the representations received in respect of this application relate to the impact on protected species and their habitats. The conservation status, details in the application, and advice of SNH and comment on each of the key species is set out in paragraphs 12.47 – 12.110 above. In summary these are:

• cetaceans and otters, which are listed on Annex IV of the Habitats Directive as ‘animals’ species of ‘community interest in need of strict protection’. A noted above, Article 12 prohibits amongst other things ‘deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration’ and ‘deterioration or destruction of breeding sites or resting places.’ • common and grey seal, listed on Annex II of the Habitats Directive as ‘species of community interest whose conservation requires the establishment of Special Areas of Conservation (SAC)’. • cormorant – protected under the Wildlife and Countryside Act 1981 and on the Western Isles LBAP list from the 2002 Audit.

OTTERS 13.106 Representations (detailed at paragraph 7.16.3) above cite: that there are long- standing and significant populations of otters established and breeding on both Lingay and Groay, as well as regularly occupying the tidal island in-between Lingay and Groay, that there are two active otter holts adjacent to the development on Lingay and that daily disturbance to their holts and the cubs has not been assessed. There are also concerns regarding degradation of their aquatic habitat, pollution of food sources from water borne contamination absorbed by the fish and molluscs they feed on and through loss of feeding areas; danger of injury from the gill nets and possible drowning. The conservation status, details on otter contained in the application (Appendix 12 and statement on potential impacts) and advice of SNH are detailed at paragraphs 12.66 – 12.72 above.

13.107 As previously noted, the otter lives and/or breeds in holts. These holts are ashore either rock holes along the coast or ‘burrows’ further inland. The proposed farm at its nearest point to land is 300m from the shore. The Comhairle’s planning service understands the conservation importance of the species, the protection afforded to them and the reasons why. It also recognises the concerns of third parties but on the basis that the presence of the species is identified, that SNH has provided clear advice, that the proposed development is unlikely to result in significant impacts on the species and that there is a lack of evidence that supports the representations, the planning service has concluded that its assessment of impact is fair and reasonable and that neither the species nor its habitat is at risk.

CETACEANS 13.108 Cetaceans (whales, dolphins and porpoises) use sound to communicate, navigate, orientate and find food; they have a highly developed and sensitive sense of hearing, and as such are vulnerable to the impacts of anthropogenic noise in their environment.

13.109 Cetaceans are reported to be present on occasion in the Little Minch and the Sound of Harris. Both areas are channels of deeper water also used as navigation routes for commercial shipping (Minch), car ferry, fishing vessels, and pleasure craft.

13.110 Concerns have been expressed that the likely use of Acoustic Deterrent Devices (ADDs) as a predator control strategy may lead to disturbance and exclusion of cetaceans from the surrounding habitat; that triggered ADDs such as that proposed for use in the application do not commercially exist; that the use of ADDs requires to be carefully assessed and that the sound will travel over greater distance from the proposed site than it would in an enclosed sea-loch. There is also concern about degradation of regular feeding habitat for cetaceans.

13.111 The conservation status, details provided in the application, the potential impacts and advice of SNH are detailed at paragraphs 12.53 – 12.64 above. Degradation of aquatic habitat is addressed in paragraphs13.33 – 13.51 above.

13.112 In representations the Hebridean Whale and Dolphin Trust (HWDT) advise that line transect surveys carried out by them since 2003 and public sightings data collated over the last twenty years indicate that the area is a habitat for species including bottlenose dolphins, common dolphins, harbour porpoises and minke whales. However, there is little in the way of formal published data on cetacean sightings for the Sound of Harris, Little Minch or surrounding areas.

13.113 The Comhairle has sought the advice of SNH who advise that based on previous monitoring (in the Sound of Mull) in relation to a fish farm’s use of ADDs, they do not anticipate that the proposed development will have a significant effect on cetaceans using the adjacent area or passing through. Following publication on 20 December 2010 of a SARF Report on the “Assessment of the impacts and utility of acoustic deterrent devices” by SMRU, SNH has provided additional advice set out in Paragraphs 8.60 and 8.61 above that explain the findings of the research on the impact of ADD’s on Cetaceans: “In the Sound of Mull porpoises were initially disturbed from an area where ADDs were introduced but were less disturbed from other areas where ADDs had been in use for several years. The report suggests that a possible explanation could be that individual animals are motivated to stay in good quality habitats regardless of the noise or perhaps they become habituated to it. It also found that porpoises returned to areas almost immediately after ADDs were switched off. The report concludes that habitat (seabed slope and depth) was a significant predictor of porpoise distribution but that ADD received level was not - confirming that the ADDs do not significantly disturb porpoises in the Sound of Mull.”

13.114 The application (Appendix 12) identifies the potential for cetaceans to be present in the waters of the Minch to the East and in the Sound. The application (Appendix 12 - Management actions) notes the intention to monitor the effect of ADDs on cetaceans

and the willingness to participate in any academic studies on the subject matter. SNH has been consulted and has advised that based on studies elsewhere the use of triggered ADDs on the proposed farm are unlikely to have significant effects.

INTERACTIONS WITH AND IMPACT ON SEALS AND THEIR HABITAT 13.115 Representations are set out in paragraphs 7.16.5 above. They cite that the proposed development would: • be located within or in extremely close proximity to recognised traditional successful and long-established breeding colonies of grey and common seals and haul-out sites on both Lingay and Groay. • be sited in an area of sea presumed to be a corridor for seals travelling to and from haul-out and pupping sites on Groay, Lingay and nearby skerries. • damage and exclude seals from their existing pupping, resting and feeding habitat. • through its siting, general disturbance from fish farm activity and magnet for seals (as predators) and lethal measures, exclude or impact on the seals. • be highly pre-disposed to seal predation with predator interactions resulting in disturbance to breeding, indiscriminate shooting of adults including nursing mothers and entanglement of cubs in predator nets. • be sited in an area of sea presumed to be at present a foraging area for seals and that that foraging area will through waste and pollution from the proposed size of farm be ecologically damaged and in turn impact on the population.

13.116 Concerns express about direct impacts include representations that seals: • would be disturbed by presence and activity at the farm when pupping. • would be disturbed by ADDs. • and/or cubs would be caught up in anti-predator nets. • would be shot leaving pups to starve to death.

13.117 By way of further context representations also cite that: • Grey seals are only one of four species of mammal native to the Western Isles. • Common seals are suffering an alarming decline. • the haul outs are on the sheltered side of both Groay and Lingay – i.e. closest to the proposed farm site. • there are very high numbers of both species of seal present annually, especially during the breeding, pupping and moulting seasons. • there are no alternative pupping habitats available to displaced seals. • that there are no alternative resting habitats available to displaced seals. • that baseline data is not sufficient to allow an assessment on impact. • that recent common seal pupping data is not provided. • that the assessment of impact and number should have regard to the population in the entire Sound including the colonies on the SSSI designated islands of Shillay and Coppay to the north west of the proposed site. • that Scotland has lost almost one third of its Common Seal population in the last 2 years and that fish farm anti-predator actions are in part responsible.

13.118 The conservation status of the species, details provided by the application, the potential impacts and advice of SNH are detailed at paragraphs 12.73 – 12.97. SNH has given further advice in respect of specific representations and these are set out at 8.47 – 8.61 above. The advice of SNH is unequivocal i.e. it is likely that grey seals will continue to pup on Groay and Lingay and if disturbed there are alternative habitats. “Disturbance is likely to be localised and temporary - seals may be disturbed away from the immediate area around the fish farm, particularly if they are in the

water when the ADDs are triggered. However, there is a large area of alternative habitat for them to use elsewhere within the Sound of Harris both for feeding and for haulouts…..Grey seals may abandon their existing pupping sites along the coasts of Lingay and Groay in response to the proposed fishfarm. However, they are already accustomed to a degree of existing boat activity from creel boats, the ferry and other passing boats so they may habituate to the fish farm activity. ADDs do not make a loud noise above water so their use is unlikely to disturb those seals ashore….If the grey seals do abandon these sites then there are numerous other islands they could use within the Sound of Harris”. Grey Seals pup ashore and forage over some distances. Common seals, when pupping gather in lower densities and are mobile immediately after pupping as the pups are able to swim as soon as they are born and again if they choose to avoid the rocks and skerries in and around the Groay-Lingay islands there are alternatives for them to use.

13.119 As can be noted from the Admiralty Chart, and advised by SNH, the Sound of Harris has an abundance of islets, rocks and skerries. SNH is familiar with the habitat in the Sound of Harris and advised that there is sufficient alternative habitat should any seals be displaced by activity at the proposed farm. “Grey seals do tend to use the same colony and many do return to the same colony where they were born but not all – new colonies are formed and examples of this are the Monach Isles, Lingay and Groay. For common seals there are numerous other rocks, sgeirs and coasts throughout the Sound of Harris that they could use to haul out…For grey seals there are other islands that they could colonise for breeding colonies eg Ensay, Killigray, Pabbay and many other small islands. There are numerous rocks, sgeirs and coasts where they could haul out.” This advice by SNH was supported by a range of maps showing the extent of alternative habitat. Regard has therefore been had to the behaviour of the different species of seal, to the wider seal population in the Western Isles and the Sound of Harris as well as the habitat resource in assessing impact. SNH has reviewed and confirm that management actions proposed in the application are thorough and if implemented should be sufficient to avoid significant impact on seals. The impact on the water column and benthos has already been considered above and the conclusion is that any change to the ecology of foraging areas arising from the proposed farm is unlikely to be of significance.

13.120 A high percentage of representations and the on-line petition submitted by ‘Save our Seals’ relate to the killing of seals. Understandably, this is an emotive issue. The need to apply for a Seal Management Licence is not peculiar to this proposal. Many fish farms in Scotland will require to make a similar application. The Seal Licensing measures are set out at Paragraph 12.78 – 12.84 above.

COMMON SEALS IN THE WESTERN ISLES 13.121 The Special Committee on Seals (SCOS) Report 2009 noted a long term decline (35%) between 1996 and 2008 in the population of common seals in the Western Isles. The report indicated that August counts of common seals in the Outer Hebrides have declined at an average annual rate of approximately 3%. Although this rate of decline is not as severe as in some other parts of Scotland (Shetland, Orkney and the Firth of Tay), it has continued over 12 years. The highest count was in 1996 (2,820) and the latest count in 2008 (1,804) with the overall decline since then 35%.

13.122 SCOS recommended that seal conservation measures be considered for the Western Isles. On 9 June 2010, Marine Scotland consulted the Scottish Seals Forum the main stakeholders group, which supported introduction of conservation measures for common seals in the Western Isles at an early date.

13.123 In the Western Isles this is achieved by the introduction of a Seal Conservation Area for common seals under the Marine (Scotland) Act 2010 when its seals provisions were implemented on 31 January 2011. This Conservation Area status is considered the most effective way to reduce human pressures on the common seal population and will remain in place until such time as concerns about the local population are resolved.

13.124 MSS has stated that ‘Where problems of seal damage occur it will still be possible for fish farms, DSFBs and other fishery interests to apply to Marine Scotland for licences to shoot a fixed numbers of common seals under the new seal licensing system but any such licences will take into account the vulnerable condition of the local common seal population and the existence of this Seal Conservation Area’.

13.125 The designation of the Western Isles as a ‘Seal Conservation Area’ for common seals means that licences to kill common seals will be very strictly controlled with a very limited number of common seals permitted to be killed in the whole of the Western Isles each year. Developers will require, through a system of returns, to report any seals killed under licence or to relieve suffering.

GREY SEALS IN THE WESTERN ISLES 13.126 The grey seal population in the Western Isles is noted by SNH to be stable, producing between 11,000 and 13,000 pups annually since 1992. While Grey Seals are not covered by the Conservation Status afforded to the Common Seal, they are nonetheless covered by the new Seal Licensing Scheme and therefore also enjoy significantly enhanced protection than was afforded the species by previous legislation.

COMMENT 13.127 The new licensing measures will improve knowledge of predator interaction and seals killed, and will place greater onus on the aquaculture industry to identify, improve and further develop non-lethal predator control means and in turn provide better protection for the seal populations in Scotland, the Western Isles, the Sound of Harris and in the vicinity of Groay - Lingay. The Conservation Area status provides even higher protection for the common seal population.

13.128 There is in Scotland a statutory framework, supported by science that will permit limited killing of seals albeit within tight controls. The application (Appendix 12) sets out published evidence on Seal behaviour, assumptions made and a ‘management plan’ which SNH considers to be thorough and, if implemented, likely to avoid any significant effect.

13.129 Despite the representations submitted on the subject, there is a clear statutory framework and a considered management plan which together mitigate against the risk of significant impacts on seal populations.

IMPACT ON CORMORANTS AND OTHER BIRDS 13.130 Representations state that there is are a wide variety of birds that breed and feed in the vicinity of the proposed fish farm including species that are of national importance and conservation concern. The breeds cited are Cormorants, Corncrakes, White- tailed Eagles, Eider Ducks Red shank, Turnstone, Ringed Plover, Common Sandpiper, Guillemot, Razor bills, Puffins and Heron.

13.131 The advice of SNH was sought on the terms of the objections relating to birds and in particular request made for comment on any particular species that may be impacted upon by the proposed development. Of those listed above, SNH commented upon the Cormorant only. None of the other species mentioned are likely to be impacted upon to any degree that merits further analysis or comment and therefore the following is focussed on the Cormorant.

13.132 Concerns expressed include inaccuracy in the application of location of the nesting sites referred to in Seabird 2000 data, date of fledging, assumptions re tolerance of human presence; lack of recent survey, cormorant nesting in sight of the proposed development; impact of boat traffic, noise and activity levels on nesting; risk of pest scarers scaring birds away and birds being entangled in anti-predator nets; lack of alternative habitat; failing in biodiversity duty and need to invoke precautionary principle.

13.133 Representations cite Seabird 2000 data available for cormorant populations in Scotland and the Western Isles and advise that, of the 445 breeding cormorants in the Western Isles, 112 or one quarter of the population were counted on Lingay.

13.134 The conservation status of the Cormorant, the details provided in the planning application, the potential impacts and advice of SNH are detailed at paragraphs 12.98 – 12.106 above. In response to representations SNH’s ornithologists provided further details to reinforce their previous advice. That advice is set out at Paragraphs 8.44 to 8.46 above.

13.135 SNH’s advice was that the birds would have sight of the fish farm sight when leaving and returning to the colony but so long as farm activity was confined to the development site, and any vessels access the site responsibly then there is a high probability the birds will habituate to the presence of the farm. During the site visit, in relation to this application, the planning officers observed a number of cormorants on a reef. A creel boat with one person on-board approached the reef to lay or lift creels and was stationary at the reef for some time without causing any disturbance to the birds.

13.136 It is acknowledged that birds when nesting will be more sensitive to disturbance but as activity is at sea some 450 – 500m north of the nesting point advised in representations, and management measures are proposed during the nesting season, it is unlikely that the birds will be disturbed. SNH having considered the alternative habitats available and historic use of alternative habitats are of the opinion that if there is disturbance the Cormorants do have other alternative suitable habitat in the vicinity.

13.137 A number of other birds including sea-eagle, divers, waders, sea-birds and corncrake were cited as using Lingay. SNH has commented on these (Refer to Paragraph 8.47 above). None are natural heritage species likely to be affected by the proposal.

PREDATOR INTERACTIONS (WITH REFERENCE TO PARAGRAPH. 7.17 ABOVE) 13.138 Concerns have been expressed about the use of anti-fouling/predator and protective netting, gill netting, (trapping diving birds, otters and seal pups) acoustic scarers and devices (disturbing seals, cetaceans and birds), the possible shooting of seals and the impact this will have on the species that live breed and feed in the vicinity.

13.139 The application has set out management measures and indicated that where appropriate and possible the farm will be will be operated where possible in compliance with the historical codes of Practice – Salmon Farming and Predatory Wildlife Code. 13.140 It is in the interests of the farm as a business and the sustainability of the industry to put in place robust management measures that protect both the farm and the animals and birds that interact with it. The planning submission demonstrates that management measures have been researched and presented and a condition is proposed in order to ensure management measures presented in mitigation of any effects are implemented.

CONTRARY TO INDUSTRY CODE OF PRACTICE, SNH AND GOVERNMENT GUIDANCE (WITH REFERENCE TO PARAGRAPH 7.18 ABOVE) 13.141 Representations state that the siting of the development is contrary to Scottish Government Guidance as the site is surrounded by vulnerable wildlife. It is also suggested that the siting is contrary to Code of Practice – Salmon Farming and Predatory Wildlife, in that new farms should not be established close to concentrations of predator.

13.142 SPP [para 108] states that ‘Voluntary Codes of Good Practice have been produced by fish farming stakeholders which address a range of issues outwith planning control such as cage and equipment design, security, management and operational practices. These codes provide the basis for certification of standards and practices put forward in support of planning applications for fish farms.’

13.143 The Aquaculture Industry has produced Codes of Practice (COP) for the management of predators and the applicant has stated that it is his intention to operate the farm in accordance with his site specific management plan and where appropriate and possible, industry Codes of Practice.

13.144 SNH is the statutory consultee on natural heritage matters and their advice was sought and received. An assessment of impacts on species, including the interaction between the fish farm and potential predators, has been undertaken and it is considered that the mitigation measures proposed are satisfactory. BIODIVERSITY DUTY (WITH REFERENCE TO PARAGRAPH 7.19 ABOVE) 13.145 Background and comment on biodiversity duty are detailed at Paragraphs 12.12 – 12.23 above.

13.146 As noted above…‘If there is evidence to suggest that a protected species is present on site or may be affected by a proposed development, their presence must be established, the requirements of the species factored into the planning and design of the development and any likely impact on the species fully considered prior to the determination of the planning application.’ 13.147 The application has identified each and proposed impacts and how he has factored the requirements of the species into the planning and design of the development; specialist advice has been obtained from SNH, and they are of the opinion that the habitats will not be destroyed but there may be localized disturbance to species but in a context of alternative habitats available. SNH has advised that they do not anticipate that there will be an impact on the Sound of Harris populations of [seals, otters or cormorants] nor loss of biodiversity. The Comhairle is entitled to place due weight on the advice of SNH.

IMPACT ON NEIGHBOURING DEVELOPMENT (WITH REFERENCE TO PARAGRAPH 7.20 ABOVE) 13.148 As stated at paragraph 12.3 above, ‘The planning system operates in the long term public interest. It does not exist to protect the interests of one person or business against the activities of another’. In distinguishing between public and private interests, the basic question is whether the proposal would unacceptably affect the amenity and existing use of land which ought to be protected in the public interest, not whether owners or occupiers of neighbouring land would experience financial or other loss from a particular development.

13.149 The view from Lingay and Groay, both un-inhabited islands are not viewpoints that would be selected to assesses landscape and visual impact in terms of satisfying the wider public interest test which the planning system requires to consider.

13.150 Planning permission was granted for the erection of a sheiling on the site of a ruined sheiling on Lingay in 2007. That permission was based on the premise that the building was for storage and temporary shelter for agricultural, forestry and conservation work on the island. The applicant cited a number of examples but ultimately the planning authority did not give consent for anything other than a sheiling. Agricultural, forestry and conservation work (outside sites designated for habitats or species) do not require express planning permission. There are many examples of many fish farms situated next to remote islands and undeveloped coastline that are subject to agriculture and/or left to regenerate naturally but are not incompatible with a fish farm as a neighbouring use.

SETTING OF A PRECEDENT (WITH REFERENCE TO PARAGRAPH 7.21 ABOVE). 13.151 The creation of a precedent, which might make it difficult to resist similar proposals in similar circumstances elsewhere is a material planning consideration. However, each application is assessed on its merits against the Development Plan in force and while consistency in decision making is desirable the planning authority is not obliged to follow its previous decisions on similar applications.

13.152 SPP [para 105] is discussed at Paragraph 12.128 – 12.12.130 above and notes that in the absence of strategic framework specific to aquaculture to identify preferred locations for fish farms, the Development Plan comprising the Western Isles Structure and Local Plan in conjunction with Scottish Planning Policy and material considerations provide the criteria against which all planning applications for Marine Fish Farms are assessed. In carrying out an assessment the cumulative impacts of fish farms are taken into consideration.

13.153 The preparation of a spatial framework for aquaculture is however in progress in the form of Supplementary Guidance to the new Local Development Plan (LDP) which is in preparation. Planning for Aquaculture was identified in the Comhairle’s ‘Main Issues Report’ and the Development Plan Scheme sets out the timetable which has been published. The Supplementary Guidance will the subject of consultation in 2011 and it is through that route that interested parties can input to the future spatial planning of aquaculture development in the Western Isles.

AQUACULTURE INDUSTRY (WITH REFERENCE TO PARAGRAPH 7.22 ABOVE) 13.154 There are many representations made in respect of this particular application that would be more fairly addressed to the industry as a whole as opposed to this application in isolation. Many relate to the past failings of the industry not only in Scotland but inter-nationally and cannot be fairly levelled at this proposed development.

13.155 The industry itself is aware of the need for change and to move forward in a more sustainable way. To that end, in 2009, the Scottish Government working in conjuction with the industry published – A Fresh Start - The renewed Strategic Framework for Scottish Aquaculture. Furthermore the industry, through the Scottish Salmon Producers Organisation, published the Code of Good Practice for Scottish Finfish Aquaculture. The Code of Good Practice for Scottish Finfish Aquaculture (CoGP) is the entry point for membership of Scottish Salmon Producers’ Organisation. The CoGP for Scottish Finfish Aquaculture is, according to the SSPO, the most comprehensive and open exercise of its kind ever undertaken by any food producing industry in the UK.

INCONSISTENCY IN BIODIVERSITY OFFICER RESPONSE (WITH REFERENCE TO PARAGRAPH 7.23 ABOVE) 13.156 This issue is responded to at Paragraph 13.11 above.

INCONSISTENCY IN SNH RESPONSE (WITH REFERENCE TO PARAGRAPH 7.24) 13.157 The Comhairle is assessing the planning application which is the subject of the current report and has sought advice from consultees in respect of this proposal. Issues regarding SNH responses require to be directed to SNH. The Comhairle however has no reason to believe that the consultation responses from SNH in respect of the current application are not well informed, reliable and worthy of considerable weight, given the expert advice which SNH provides.

13.158 In terms of management, SNH has advised that in agreement with the Aquaculture industry, it has concluded that it would be more effective and more likely to deliver natural heritage gains by working on on-going mitigation measures through management agreements. SNH has advised that this development would seem to present an opportunity to enter into an agreement and that the applicant has previously indicated a willingness to come to an agreement of this nature. It is proposed that a condition be imposed requiring the submission of a natural heritage management agreement (agreed with SNH) in terms substantially similar to that submitted in Appendix 12 to the application.

PLANNING PROCEDURE (WITH REFERENCE TO PARAGRAPH 7.25) 13.159 A number of representations on planning procedure are detailed in paragraph 7.25 above.

13.160 The surface area of water covered has been re-checked and does not exceed the 2ha area that would result in this development being classed as a major development within the terms of Item 7 of the Schedule to the Town & Country Planning (Hierarchy of Development) (Scotland) Regulations 2009.

13.161 The nature and scale of the proposal does not require to be the subject of a Public Hearing in terms of the Town & Country Planning (Development Management Procedure) (Scotland) Regulations 2008 (DMR 2008).

13.162 As noted at Paragraphs 13.147 -149 above, the application for planning permission is not in conflict with a previous consent for a sheiling, granted planning permission on Lingay.

13.163 The requirement in the DMR 2008 is to advertise the development in a newspaper circulating in the locality of the Planning Authority. There is no statutory requirement to consult or notify any interest in adjoining land. This application was advertised in accordance with the Regulations.

13.164 The Comhairle has addressed the issues in the planning application and sought clarification from consultees and the applicant as deemed necessary.

COMPETENCE OF THE PLANNING SERVICE (WITH REFERENCE TO PARAGRAPH 7.26) 13.165 A number of representations related to the competence of the planning service. These are not material to the determination of this planning application.

SUMMARY AND CONCLUSIONS 14.1 This is a planning application for the development of a new fish and shellfish farming site in an area of marine water between the islands of Groay and Lingay lying to the east of the Sound of Harris. The development comprises 20 no. 24 sq metre square cages groups (for the growing and feeding of Atlantic salmon) sited in two groups of

10 cages (5 x2 cages per group). One group is sited at right angles to the other with a feed barge sited between the two cage and 6 no. 200m long long-lines (for the growing of shellfish (and seaweeds)) moored parallel to the long axis of the above cages; the long-lines anchored within the same mooring system that will secure the fish cages in position.

14.2 The cultivation of seaweed does not fall within the definition of ‘development’ and is therefore not subject to planning control.

14.3 The Planning Acts require decisions to be made in accordance with the Development Plan unless material considerations indicate otherwise. Material considerations are those that relate to the development and use of land. The weight to be attached to a material consideration is a matter for the Comhairle. As noted in the Report the planning system operates in the long term public interest and does not exist to protect the interests of one person or business against the activities of another. Where there are impacts that can be mitigated, conditions may be imposed on the grant of planning permission.

DEVELOPMENT PLAN 14.4 The full assessment against the provisions of the Comhairle’s Development Plan (Structure Plan and Local Plan) is set out at Section 11 of this report (together with relevant cross references to later parts of the report). Having considered all the issues individually and collectively it is concluded that the proposed development accords with the relevant provisions of the Development Plan. Where issues raised through the assessment require and are properly to be controlled through Planning, conditions are proposed for mitigation and management purposes. In relation to Development Plan policy these conditions relate to lighting control, site equipment management, site restoration, and implementation of a natural heritage management agreement.

14.5 In addition to the Development Plan, consideration requires to be given to those issues that are considered material to planning. A summary of these matters is set out below.

SCOTTISH PLANNING POLICY (SPP) 14.6 The regulatory controls, pertaining to the Fish Farming industry are set out in paragraph 6.9 of this report. In terms of SPP [Paragraph 108] the planning system should not duplicate control regimes such as CAR licenses regulated by SEPA, or fish health, sea-lice and containment regulated by Marine Scotland. It is further noted that information submitted as the basis for certification of standards and practices e.g. cage and equipment (structural) design, security, management and operational practices are regulated by others (Refer to Paragraph 6.9). It should be noted that some of the issues raised in the course of representations relate to these matters and while discussed in this Report are not controlled through a Planning Permission.

14.7 Paragraph 107 of SPP sets out the matters planning require to take into account in determining planning applications for fish farming namely the direct and cumulative effects of the proposed development including carrying capacity, landscape and visual impact and impact on marine and historic environment and the loch or sea bed. The needs of local communities and other benefits also require to be taken into account alongside the economic benefits of the fish farming industry and the operational needs of fish farms.

LANDSCAPE & NATURAL HERITAGE – BIODIVERSITY DUTY. 14.8 The biodiversity framework is set out in paragraphs 12.12 – 12.21 while paragraphs 12.22 – 12.23 set out how the Comhairle would be in a position to discharge its duty under Section 1 of the 2004 Act through its planning function. Further comment is made in Paragraphs 13.144 – 13.146.

LANDSCAPE & NATURAL HERITAGE – PRECAUTIONARY PRINCIPLE. 14.9 Many references cite the need to invoke the precautionary principle in respect of various natural heritage concerns. Paragraph 103 of SPP is clear in that the precautionary principle should be invoked when impacts on natural heritage resources are uncertain but there is sound evidence for believing that significant irreversible damage could occur. Consideration has been given to natural heritage interests and while there is some uncertainty due to lack of research or data e.g. on fish migration or prevalence of cetaceans in the area of the development, there is no sound evidence that significant irreversible damage would occur. That position is confirmed by the advice of Scottish Natural Heritage. It is therefore concluded that there are no grounds to invoke the precautionary principle.

NATURAL HERITAGE – LANDSCAPE AND VISUAL 14.10 Paragraphs 12.51 – 12.61 of this report address both landscape and visual impact arising from the development in some detail. Further comment is made in relation to specific representations at Paragraphs 13.52 – 13.61 above. It is considered that in conjunction with these comments, the response to Structure Plan Policy RM9 above, demonstrates that policy is satisfied; it has been demonstrated that the special qualities of the NSA have been considered, landscape change is localised, there will be no significant adverse effect on the objectives of the NSA and therefore its character and appearance are safeguarded and there are no material considerations that indicate that the issue should be considered otherwise.

NATURAL HERITAGE – SPECIES OF CONSERVATION IMPORTANCE, IMPACTS AND INTERACTIONS 14.11 Paragraphs 12.49 – 12.108 of this report set out the conservation status, data provided in the application, SNH’s advice and comment Species of conservation importance, impacts and interactions. There is further discussion on representations made in respect of these issues in paragraphs 13.103 to 13.138. The likely disturbance and/or displacement of the species, the impact on their habitat and relative abundance of alternative habitat and the risks of interaction are all considered with the benefit of SNH’s advice. It is acknowledged that there may be a degree of local disturbance to species, but the conclusion in the case of each species is that there is alternative habitat in the near vicinity and the species is not likely to be adversely affected either in the locale or at population level. SNH has not required an EPS licence.

14.12 Interactions with the farm by some of the species as predators, primarily seals and cormorants are also considered and a management proposal has been put forward which SNH consider to be thorough and if implemented will avoid adverse impact on the species of concern.

14.13 In terms of protection, new licensing measures regulated by Marine Scotland will address the welfare issues associated with the potential for the taking and killing of seals.

14.14 Natural heritage impacts have been considered and while there are many representations on the subject matter there is no sound evidence of significance of impact or that significant irreversible damage will occur in respect of the species or their habitat. The conclusion of the Planning Service is therefore that the impacts upon natural heritage resources does not merit refusal of the application.

POLLUTION, WASTE, WATER COLUMN, BENTHIC AND BENTHIC BIODIVERSITY 14.15 Pollution, Waste, Water column, benthic and benthic biodiversity impacts are discussed in paragraphs 12.107 – 12.113 and 13.34 – 13.51 of this report. Impacts on water column and benthos have been assessed to be within environmental limits, and while there will be degradation of the seabed immediately below and in a zone around the cages and longlines, there are no benthic species of conservation concern and according to statutory consultee advice there is evidence from other fish farm development that the seabed below cages recovers in a relatively short period of time. While there are public concerns over this matter the assessment does not support the views submitted. Elements of control and future management of a fish farm are dealt with by other regulators under environmental legislation. Consultee advice is that the environmental impacts of this proposed farm are within acceptable limits. These considerations do not therefore merit refusal of the application.

IMPACT ON AND INTERACTIONS WITH WILD SALMONID 14.16 Paragraphs 12.122 and 13.24 – 13.33 of this report sets out the considerations in respect of Wild Salmonid populations and the potential for impact on these by the proposed development. The location of the proposed farm deems that there is unlikely to be a significant impact on either Atlantic salmon or sea trout although the risk to sea-trout is slightly higher than that of the salmon. The DSFB and MSS were consulted. The planning authority is entitled to place due weight on the advice of the statutory consultees and given their advice and that neither have objected to the proposal, the Comhairle’s planning service having assessed the application, advice and representations are of the view that these considerations, while material, do not merit refusal of this particular application.

NOISE AND LIGHT POLLUTION AND NUISANCE 14.17 Light pollution is addressed under Landscape and natural heritage and again together with noise under paragraphs 13.62 – 13.65 of this report. The location of the development remote from sensitive receptors is such that light pollution in a context where there is already extensive navigation lighting is not considered to be a major issue. Equally, the noise of the farm being generally limited to boat engines, generators and automated feeding systems and often absorbed by the level of natural background noise, is unlikely to result in any significant effect on either human or natural heritage receptors. These considerations do not therefore merit refusal of the application.

NAVIGATION AND ANCHORAGE 14.18 Navigation routes and protection of the anchorage were given due consideration in the siting of the farm. A S34 coast protection consent has been issued by the Scottish Government and provided its terms are adhered to, the development will not conflict with the anchorage or be a hazard to navigation and therefore these considerations do not merit refusal of the application.

SOCIO ECONOMIC IMPACT 14.19 Paragraphs 12.127 and 13.67 – 13.80 of this report address this issue. Representations have been fully considered and it is concluded that the socio economic impacts are not adverse and that considerations on this aspect do not merit refusal of the application.

LOCATION AND CONTAINMENT 14.20 Location and containment are discussed at paragraphs 13.81 – 13.88 of this report. These issues are regulated by other legislation and have been reviewed and advised upon by MSS. These matters do not merit refusal of the application.

OPERATIONAL ISSUES 14.21 Operational and Management issues are discussed at Paragraphs 13.89 – 13.96 of this report. While once again these matters are regulated by others the representations regarding disease management are such that they merit sufficient concern to explore further. MSS has provided clear advice in that the proposed development while resulting in an erosion of the existing ‘firebreak’ between disease management areas will not result in a breach of that ‘firebreak’ as has been alleged. These matters do not therefore merit refusal of the application.

NATURE AND SCALE 14.22 It is concluded that the scale of the development is not dis-similar to many of the fin- fish farms which have been the subject of applications and consents in the Western Isles in recent years. It is acknowledged that the long-lines will add to the scale of the development. However, the landscape has adequate absorption capacity and the proposed development has been assessed as not having a significant adverse impact on the NSA. In addition, there is considered to be adequate space available for shore based storage and activities. This matter does not merit refusal of the application.

CULTURAL HERITAGE 14.23 Both Historic Scotland and the Comhairle’s Archaeologist advise that there are no built heritage interests including non-scheduled archaeology that merit refusal of the application.

IMPACT ON NEIGHBOURING DEVELOPMENT 14.24 It is noted that a planning consent was granted for the erection of a sheiling for temporary shelter for agricultural, forestry and conservation related use on Lingay. The Western Isles Fisherman’s Association has members undertaking commercial fisheries in and around the Sound of Harris but they raise no objections to the proposed development. There are therefore no known current ‘land’ uses which give rise to the potential for a significant impact on ‘neighbouring development’. These matters do not therefore merit refusal of the application.

STATUTORY ADVISERS 14.25 The Comhairle’s planning service seeks the advice of statutory consultees as specialists in different aspects of the development. In this case, further advice was also sought in respect of some of the issues raised through representations. None of the statutory or internal consultees have objected, or raised significant concerns with regard to the application.

CONCLUSION 14.26 In assessing this application for planning permission the Comhairle must base its decision on the Development Plan unless material considerations indicate otherwise. The proposal has been assessed against the Development Plan and consideration has been given to material considerations including Scottish Government Planning Policy, and relevant third party representations. There are no objections or significant concerns raised from statutory or other consultees. The proposal has been assessed to accord with the Development Plan and while there are other relevant material planning considerations, it is judged that none either individually or collectively carry sufficient weight to justify the refusal of the application. It is therefore recommended that the application be approved subject to planning conditions as set out in Annex A to this Report.

ANNEX A

SCHEDULE OF PROPOSED CONDITIONS

Condition 1 Throughout the life of the development to which this planning permission relates, the cage structures above water level shall be coloured grey and the cage, shellfish longline floats, and mooring floats shall be coloured dark grey and shall be retained in this colour throughout the life of the development, unless required otherwise by any statutory consent regulating navigation or agreed otherwise in writing with the Comhairle as planning authority. Reason In the interests of the visual amenity of the area.

Condition 2 Throughout the life of the development to which this planning permission relates, no means of artificial illumination, other than that required for health and safety or navigation reasons shall be installed above or below the water surface, without the prior written approval of the Comhairle as planning authority. All lighting, not required for safe navigation purposes should be directed downwards by shielding and be extinguished when not required for the purpose for which it is installed on the site. Reason In the interests of the visual amenity of the area.

Condition 3 In the event of equipment falling into disrepair or becoming damaged, adrift, stranded, abandoned or sunk in such a manner as to cause an obstruction or danger to navigation, or environmental dereliction, the developer shall carry out or make suitable arrangements for the carrying out of all measures necessary for lighting, buoying, raising, repairing, moving or destroying, as appropriate, the whole or any part of the equipment. Reason To prevent environmental dereliction and risk to safe navigation.

Condition 4 In the event of cessation of operational use of equipment for the growing of fin- fish or shellfish, for a period exceeding 24 months, the equipment hereby consented shall be wholly removed and the site restored to the satisfaction of the Comhairle as planning authority unless agreed otherwise in writing by the Comhairle as planning authority. Reason To prevent deterioration of the site in the event of cessation of operations.

Condition 5 Prior to the proposed development first being stocked, evidence shall be submitted to the Planning Authority of a management agreement between the Developer and SNH on the management of natural heritage wildlife interactions in terms substantially equivalent to that set out in ‘Appendix 12 – Wildlife interactions’ (copy attached). Such an agreement shall be maintained throughout the lifetime of the development. Reason In the interests of ensuring management measures proposed in mitigation are implemented and to ensure the implementation of the proposal as set out in the planning application for the consented development.

Condition 6 Throughout the life of the development, the site should be marked by means of a lit yellow pole, flashing group four yellow every twelve seconds, (Fl(4) Y 12s) and fitted with a yellow multiplication cross topmark. The pole should be positioned at the most Northerly corner of the group of cages. The pole should be at least 75mm in diameter and not less than two metres in height. The light should be installed on the top of the pole; the visible range of the light should be two nautical miles. The multiplication cross should measure a minimum of 75cm in length by 15cm in width. In addition, the feed barge on the site should exhibit an all round fixed white light, from a point at least 1 metre above any obstruction. The nominal range of the light should be 2 nautical miles. The use of trip ropes and mooring buoys to indicate the seabed extremity anchors should be prohibited on the Northerly and Westerly side of the site but at the most South-westerly corner we recommend the anchors are marked with 50cm high visibility orange buoys to give indication to any vessels using the safe anchorage where these anchors are placed. Reason In the interests of navigational safety.