Loch Long Salmon (LLS), whose planning application for an experimental industrial fish farm using untried technology at Beinn Reithe was refused by the National Park Authority (NPA) in November 2022, began its planning appeal on Thursday 8th June at Arrochar, Argyll.
The pre-examination meeting was led by Scottish Ministers’ appointed Reporter David Liddell. The LLS legal team included Craig Whelton of Burgess Salmon Solicitors accompanied by LLS directors Stuart Hawthorne and Mark Shotter. Loch Lomond and the Trossachs National Park was represented by Alastair McKie of law firm Anderson Strathern with NPA Director of Place, Stewart Mearns and Planning Officer Alison Williams.
The meeting was attended by a number of groups opposed to the development including AFFtheClyde, Loch Lomond Angling Improvement Association, Loch Lomond Fisheries Trust, Argyll Fisheries Trust, Argyll District Salmon Fishery Board, Planning Consultant Paul Houghton, as well as John Campbell KC who was representing two Ardentinny property owners.
Reporter David Liddell started by outlining his role. Normally, as Reporter, he would make the decision on the planning appeal. However, on this occasion, Scottish Ministers have decided to determine the appeal themselves. Therefore, as Reporter, he will provide an assessment to Ministers (effectively Joe Fitzpatrick – Minister for Local Government Empowerment and Planning) of the planning merits of the proposed development and recommend whether or not the appeal should be allowed. Ministers may or may not accept this recommendation.
The purpose of the meeting was to hear the thoughts on each issue and to decide on written submissions; a Hearing or Public Inquiry; as well as hearing other issues where further evidence is required. At a later date, the Reporter will send a note to all interested parties confirming his decisions with regards to further procedures and asking everyone who wishes to take part to confirm. He advised that this should be sent out by the end of the week following the meeting. Mr. Liddell then outlined the differences between written submissions, and a Hearing and an Inquiry. Considering the number of groups involved in this case and to speed up the process, he also encouraged like-minded parties to join together to present a unified case.
Craig Whelton of the LLS team suggested that a public “open floor” session might be a useful way to bring people together to make representations “all we’d ask for is sight of what people were intending to say in terms of evidence and the opportunity (for us) to respond”. He continued “it would be as an alternative for those who don’t necessarily want to take part in the full process. It’d be an opportunity for those parties to make representations to you without having to necessarily sit through a whole Inquiry or Hearing session”.
John Campbell KC considered that Mr. Whelton’s suggestion was a “very sensible one”, he said “You should know that considerable attempts have been made to corral individual objectors under one umbrella. It’s not up to me, of course, to go out looking for business. That’s not what we do. But nevertheless, those attempts do not seem to have been successful so far. Perhaps after today and looking at your agenda, there may be a change in that. However, this is not the first time this matter has been raised and so far, the objectors are a disparate group. (it) just so happens that I represent two of them, but there are others who are self representing. Just to sum up, the idea, in my respectful submission, is a good one, quite workable. People write their statements out and it forces them to concentrate their thoughts on paper, and then you have that information later, to report to the Minister”.
In reply, Hilary Warton of AFFtheClyde sought assurance that any public session would not preclude any involvement in the further proceedings. In reply the Reporter said “I think the suggestion would be that it’s just another way of doing it for some people. But as I said to Mr. McKie, I need enough information to write my report and where things get technical or where facts are disputed, then something like a formal inquiry is often better to get to the bottom of that. But there’s a balance here between not excluding people who feel daunted by a procedure like that”.
There were further questions related to this type of session from individuals on the floor including the NPA and Colin Liddell from Loch Lomond Angling Improvement Association (LLAIA) who said “My only concern with the open meeting suggestion is that somehow the key issues get diluted in terms of time management, …and perhaps not get into the level of data; and detail; and evidence. Because it sounds like an emotional platform rather than an evidence-based platform. So I think the agenda management would need to be very, very precise”. The Reporter concluded that he “was going to have to think about it”.
Colin Liddell (LLAIA) commented “The key part of Lomond catchment system enjoys SAC (Special Area of Conservation) protected status, which places a legal obligation on anyone presenting a risk to the system to demonstrate fully how they plan to mitigate against such risks given the protected status. I just wanted to ensure that this was taken into account in any consenting framework as to how the applicant plans to mitigate the legal responsibility for causing no harm to two of the species covered by the SAC status”. The Reporter replied “I continue to try and make sure I’m clear about the parameters for the consent or not consent or otherwise”.
Hilary Worton of AFFtheClyde questioned the timeline for public responses and considered that a short response time would be challenging for groups attempting to rally responses around communities. She suggested 21 days should be the minimum period for responses.
Craig Welton for LLS considered that a Hearing was needed for the “nature of the development” to enable ministers, and everyone participating, to understand the technology and the nature of the proposal in more detail, as well as enabling LLS to address the criticisms made by the Park authority. Participants would be able to ask questions. He did not consider that it should be part of the “open floor” session.
In response, Alastair McKie for the NPA did not consider a Hearing session was particularly necessary as he did not consider there was “a great dispute about what was being proposed here”. He continued “Yes, it is the first in Scotland. It is novel but that’s a factual statement on how it works. I certainly am of the view that this could be dealt with by further submissions if needed”. There followed some discussion between the parties as to what was covered by “nature of development”.
A questioner from the floor asked what the difference was between a Hearing and an Inquiry. The Reporter explained that the Hearing would be more of a round-table format chaired by the Reporter who would have previously received all the participants’ Hearing statements. He would then question the participants on their positions. An Inquiry session is more of a court-like situation where, for example, the objector would be cross-examined by the appellant. The Reporter may also put questions to the participant.
Planning consultant Paul Houghton, who is representing an objector who has a particular interest in the technology, stated that his client would want an Inquiry session, “given the fact that it’s so central to the appellants’ case and obviously, it’s so central to a number of the other issues”.
On the topic of seascape, landscape and visual effects, the Reporter said that the appellants suggested an Inquiry session was required, however the Park Authority suggested a Hearing. The Reporter then requested a straw-poll show of hands from those who wished to participate and their preference. KC John Campbell said his clients were indifferent “whether there’s an Inquiry or Hearing”, but he endorsed what the Reporter previously stated that a Hearing would provide “more information, more quickly”. He continued “It’s our intention, for what it’s worth, to lead our landscape architect as part of the case being made by my clients”.
Alastair Moodie from the floor asked “At what point will you address the land use issue as to whether it is actually permissible to use the land in this way from an industrial development?”. The Reporter responded “I’m not sure exactly what you mean by that, but I suppose to the extent where that’s relevant to the planning policies in the National Park local plan, and the partnership plan, then that may be relevant. I don’t see the need for any. I’ve taken into account it is relevant to the planning consent, but I don’t see the need for any further sessions.
Alastair Moodie responded “This is actually public land with a history. I believe that there are legal things on the use of the land”. The Reporter replied that he had read evidence that the land had been given or bequested, “I just need to reflect as to the relevance of that in my reports”. Finally on this topic, the legal team representing the NPA said “Certainly the Park’s view that a structured discussion led by the Reporter to a Hearing session would be the appropriate procedure for this and is more likely to focus on the issues that you would like to hear upon. It may also prove to be more inclusive to the relatively large number of interested parties who will also wish to participate”.
One of the Park Authority’s reasons for planning refusal was concerns related to escape of farmed salmon and these then genetically interacting with wild salmon in or migrating from the Endrick Water Special Area of Conservation (SAC). The Reporter considered that an Inquiry session might be needed as these points could potentially be of a technical and legalistic nature.
LLS stated that they considered an Inquiry session appropriate, however the NPA is in favour of a Hearing. For the NPA Alastair McKie said “the dispute is translating it down to sort of brass tacks really concerns the efficacy of the technical standards and that was a matter which was not considered by the Park to be particularly technical. It is a matter of presenting the facts, and yes, there will be interpretation of those facts. We don’t see any reason why that shouldn’t be a structured discussion. Led by yourself. I would also make reference to the two recent planning appeals. One is PPA-310-2033, which was the one in Lochranza, Isle of Arran which is actually referred to in the appellants’ case, the other one PPE-270-2224, which was near Bridgend Cottage, in Portree in the island of Skye”.
Alastair McKie continued, “Both of these appeals concerned the same issues that’s before the Inquiry here, which is impact on landscape and seascape and also impact on an SAC, with a Habitats Regulation Assessment (HAC) and appropriate assessment in play in both of those appeals. The reporters did not engage in any oral procedure at all, I think there were some minor further procedures. So it wasn’t felt necessary in similar appeals, including one referenced by the appellants themselves to have any procedure. So for us to suggest a Hearing will be going further than these other Reporters have gone, they’re different cases, I fully accept that but I just cite that as an example. So that’s two reasons why it should be a Hearing, the other one is really down to the point about the number of interested parties who may wish to participate (such as) the Atlantic salmon trusts, as one example. They may find a Hearing session a more inclusive process”.
Alistair Reynolds who was representing Argyll Fisheries Trust and Argyll District Salmon Fishery Board indicated that one or both of these groups would like to make representations and their preference would be to a Hearing rather than an Inquiry.
However, Colin Liddel of Loch Lomond Fisheries Trust disagreed “…it sounds very much to me that the Inquiry deals far more on an evidence-based and data-based discussion unless I completely misunderstood, than an around-mic session or a Hearing. It may come down to your opinions or statements rather than facts, data, evidence, science”.
John Campbell KC replying to the Reporter said “I agree with Mr. Liddell and I agree with Mr. Whelton, this is an Inquiry topic of the first importance and likely to be the one that will cause you much difficulty, I think, in the range of subjects which you have set out. Certainly the evidence I’ve gathered so far indicates that.
A speaker from the floor asked “.. In terms of where this Appeal sits, how does it align with the current Scottish Government’s policy with regards to the nature crisis? And will that be taken into account by yourself with due respect in terms of your final report?”. The Reporter responded “There is a policy requirement on me to take that into account. That’s as much as I can say at this point, but it’s a relevant consideration”.
The Reporter said that he considered that the scope of a Hearing or Inquiry is about the effects on the Special Area of Conservation, however he wanted to give people the opportunity to tell him if this was too narrow (regarding the risk of escape). He said “ So, the session as I see it at the moment, isn’t dealing with sea lice, and isn’t dealing with the effects on other populations of wild salmon, however, I know that our salmon rivers in Loch Long and I just want to know if there (are) any views as to whether I should widen that out to be wider than the SAC”.
Colin Liddel of Loch Lomond Fisheries Trust responded “I for one would want the scope expanded, given the historical performance of this industry and its impact on the migratory fish populations in the West Coast. I believe it’s absolutely key that you take into account the wider environmental impacts such as sea lice infestation and sea lice nurseries in such close-contained farming. For example, our association has commissioned and works closely with Glasgow University and seen that they have undertaken extensive studies into habitat impact, which we will be glad to share, including smolt migration tracking in terms of routes and mortality. So yes, I think it should be wider”.
Alistair Reynolds of Argyll Fisheries Trust agreed “I would just echo what Mr. Liddel said, in regard to widening the scope beyond the SAC and point out, as you’ve already observed, that there are several rivers entering Loch Long and Loch Goil which are highly relevant to this particular Appeal”.
AFFtheClyde’s Hilary Worton was not in agreement for widening the scope. She said “I think if we bring the sea lice debate into this discussion it takes them to a discussion about the merits or demerits of the semi-closed technology and the impacts of that in terms of sea lice. So I would actually say we should concentrate just on the risks to the SAC and keep it focused on that.
Alastair McKie for the NPA said “I’ll start by saying I don’t think it would be helpful to have an early feature development session dealing with sea lice to get it out of the way. You’re quite correct that the Park Authority’s reasons for refusal are focused on the impact on the integrity of the Endrick Water SAC and that is its main focus. That having been said, the Park Authority is not objecting if the interested parties wish to expand the scope of what you may have intended here to deal with the effects of sea lice on salmon, not just in the Endrick, but obviously in the other migratory rivers from Loch Long. So we have no difficulty if they wish to include that in that particular session”.
John Campbell KC said “Just to say that self-evidently the nature of the development in respect to the National Park is not their topic because they haven’t dealt … and their reasons for refusal with the merits or demerits of what is proposed. They’re simply looking at the effect on the Park. But for the people who are living around the park, the nature of the development is paramount. So if Mr Welton is tacitly proposing the opening session on this particular bullet point, I would wholeheartedly endorse that. Whether my clients are able to muster the necessary technical expertise in time remains an open question, for they will certainly be trying to do that. And if there was an aggregation of third party interest around this point, then that would seem to make good sense”.
LLS lawyers commented “The appellants’ position is that the Park Authority has failed to properly undertake its appropriate assessment and the appellant does wish to cross examine the Park Authority and its approach to that, which we regard as a technical and legal matter. So it’s not simply about technology”.
On Planning Policy, Craig Welton of LLS considered there were no disputes regarding which policies apply under the interpretations policy and that they’d be happy to provide further submissions.
However, the NPA considered there was a dispute about the interpretation of the policy, whereas the appellant suggested that the planning policy is straightforward and there is no dispute about its interpretation. The NPA considered it would be beneficial to consider this before moving on to other elements.
Alistair Moodie from the floor asked “Is this the right place in terms of a planning decision? I think that enough time and attention needs to be given to that key aspect of the land use. Forestry and Land Scotland, as a government agency, are the custodians of this public land. They have a management plan for that site. I thought that there would be an adequate opportunity to look at the whole business of the appropriate use of this land at the site of the proposed development”.
Planning Consultant Paul Houghton cited that, given that Loch Long had one of the most polluted water courses for microplastics in Scotland as well as the risks from the nuclear facilities and the recent reports of discharges from these facilities, he had concerns related to the effect of water quality on health where food was being raised. In reply, the Reporter suggested that it would be a matter for the Food Standards Agency or other regulatory bodies, however he didn’t have a closed mind on it.
Paul Houghton also raised the topic as to whether the technology envisaged was tested or untested and asked the Reporter if he thought it important to see the technology in operation. The Reporter replied “I hadn’t contemplated that that would be possible as there isn’t any operating in Scotland, but I suppose it’s operating elsewhere in the world, perhaps. And it’s something for me to think about”. In his reply Craig Welton of LLS said “I can come back after the break on that or we can speak to Mr. Houghton about that directly because I know it’s been raised by his client before”. The Reporter responded “..and yes, I wasn’t asking for a plane ticket to Norway from you”.
There followed a discussion by all parties as to a timetable for the appeal proceedings to begin. The 25th of September was agreed. The timetable will be confirmed by the DPEA shortly. It was agreed that the Reporter could undertake the site visit unaccompanied. He also suggested that it may be helpful to have the marine area of the site marked out. Stewart Hawthorne of LLS said that it’s “not an insubstantial undertaking for us given that LLS would need to contract someone to do it. But they could do it again if the Reporter thought it necessary”. The NPA supported the placing of markers.
Alastair Moodie from the floor questioned the Reporter regarding a possible conflict of interest with Scottish Ministers. He said “Normally with planning matters dealt with by local authorities, I hear councillors on the planning committees say they must not in any way declare their views in advance of their decision. Now, if the Scottish Ministers are a corporate body… the fact is that one of the Scottish Ministers has already declared his support for the application. So that seems to be highly prejudicial in a setup where the Scottish ministers have the final say, so what is the legitimacy of that practice? If someone within the Scottish ministers is already taking sides?”.
Reporter David Liddel replied “I’ve no knowledge of that or which minister has said anything”. The questioner interjected “Mr. (Angus) Robertson”. The Reporter continued “I’ve been appointed to report back to Ministers the case and that’s what I’ll do. Any questions about that procedural aspect you raise about conflicts of interest or things of that nature, are not for me, I wouldn’t do anything about them or get involved in them. That would be a question for ministers rather than for myself”.
Finally Colin Liddel from LLAIA said that he assumed a Habitats Regulations Appraisal (HRA) was a mandatory step in the process. “If it’s not already been carried out, when will the HRA study be completed? And when will that information be released?”. The Reporter replied “..My understanding is if Ministers wish to consent this, they would have to have undertaken a habitat regulations appraisal, they would presumably do that on the basis of the evidence that was in my report and the documentation, but that will be an obligation on the decision maker. So it is done at the point of which or prior to making the final decision”.
In conclusion the Reporter said “My aim is to get the note of this meeting out by the end of next week, and that will invite you to confirm how you wish to participate. It will also set out my expected timetable for the exchanges of written evidence, and indeed the dates, time and the start date of the Inquiry session”.
The DPEA webcast of the pre-examination meeting is available here.