Orkney fish farming company fails to overturn refusal of permission for proposed salmon farm sites

An Orkney fish farming company has been unsuccessful in its challenge by judicial review of the decision of the Scottish Ministers to refuse two applications to develop salmon farms off the Orkney coast.

The petitioner, Orkney Marine Farms Ltd, argued that the reporters for the respondent had acted unlawfully in their application of the National Marine Plan and in finding that granting permission for the farms would not be to act in the way best calculated to mitigate or adapt to climate change.

The petition was heard by Lady Carmichael in the Outer House of the Court of Session. O’Rourke QC appeared for the petitioner and McKinlay, advocate, for the Scottish Ministers.

Maerl beds

In order to develop the proposed fish farms in Shapinsay Sound, Orkney, to be named Yinstay East and Yinstay West, the petitioner required authorisations to discharge effluent and solid waste, including fish food, faeces, and chemicals used in fish farming. Their application was refused by the Scottish Environmental Protection Agency, leading to an appeal to the Scottish Ministers under regulation 50 of the Water Environment (Controlled Activities) (Scotland) Regulations 2011.

Two reporters for the respondent determined on 15 March 2021 that the appeal should be refused. A primary issue of the appeal was whether there were any maerl beds under the proposed site, a class of seaweeds which were one of 81 priority marine features listed by the Scottish Ministers in 2014, and what the effect of any discharges would be on them.

It was submitted for the petitioner that the reporters ought not simply to have concluded that there were maerl beds present and then gone on to consider the risk of damage to them in the light of the precautionary principle. There was evidence that the maerl in the area was already either unhealthy or dead, and in the latter case it could not be susceptible to further harm.

As part of their appeal to the respondent, the petitioner had proposed to relocate the fish farms by a distance of less than 150m to the west, out of the area of greatest maerl coverage. It was submitted that the reporters ought to have considered whether the risk in the alternative location was reduced as compared to the original location.

Disagreement with conclusions

In her decision, Lady Carmichael said of the petitioner’s arguments relating to the maerl beds: “Other than in respect of what was said to be a failure to take into account the condition of the maerl beds, there is no criticism of their analysis of the evidence, or their reasoning.”

She continued: “The reporters were faced with uncertainty as to how much waste maerl beds could accommodate without deterioration. They were also faced with uncertainty about precisely how and where the material would be deposited and whether it would stay where it was deposited. They found themselves uncertain about those matters having considered the available evidence. They accepted that maerl was highly sensitive to organic enrichment, and took account of research evidence that effects had been observed on maerl in highly dispersive sites.”

The judge concluded on this matter: “The reporters did not accept the arguments of Orkney Marine as to the relevance of the condition of the maerl beds in assessing the effect of the discharges. They were not irrational in rejecting them. Orkney Marine’s complaint is one of disagreement with the conclusions of the reporters. That is not a ground for judicial review.”

Question of fact

Turning to the issue of the proposed relocation, Lady Carmichael noted: “in determining whether to grant an authorisation for any proposal, the reporters would have had to consider what risk it posed to the priority marine feature. Whether a proffered mitigation will reduce risk sufficiently is a question of fact in every case. It involves an assessment of the risk that the development , with the proposed mitigation, would pose.”

She went on to say: “[The reporters] had a great deal of material available to them about the marine environment at and near the sites of the proposed developments. They record information available to them about the survey of the site immediately to the west of Yinstay West, where there was observed coverage of between 15 and 80 per cent. In the context of the uncertainties regarding tolerance and dispersal and resuspension, they were entitled to take the approach that they did. That is sufficient to dispose of this issue.”

Addressing a final argument that the reporters had erred in finding that the proposal engaged section 4 of the Marine (Scotland) Act 2010, Lady Carmichael concluded: “They were entitled to conclude that even a small consequence, so far as climate change was concerned, was relevant. They were not bound to conclude that the consequence was so small as to be irrelevant. They had to act in the way best calculated to mitigate, and to adapt to, climate change.”

The petition was therefore refused.

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